<div>Dear all,</div><div> </div><div>I've just gleaned from the NYT <a href="http://www.nytimes.com/2012/01/19/business/global/hedge-funds-may-sue-greece-if-it-tries-to-force-loss.html?ref=global-home" target="_blank">http://www.nytimes.com/2012/01/19/business/global/hedge-funds-may-sue-greece-if-it-tries-to-force-loss.html?ref=global-home</a> that hedge funds may take Greece to the European Court of Human Rights claiming that their property rights have been violated. Apparently Greece is planning what is called a "haircut" of its debt: Greece would default partially and the loss spread among the bond-holders. The European Central Bank holds 50 billion or so bonds, which it took on as part of previous attempts to keep Greece afloat. These bonds would not be subject to the "haircut", a measure which may be necessary in order for the ECB to continue playing its role of "lender of last resort".</div>
<div> </div><div>The case is particularly difficult, for it pits a clear and immediate private loss against a "danger to the system" - whose entity cannot be evaluated, even lass quantified in advance.</div>
<div> </div><div>Whatever the merits of the case such legal entanglements might delay the orderly execution of the salvage operation and even precipitate the crisis we intended to avoid. The analogy would be that, on the sinking Titanic, men would threaten to appeal to the ECHR because their right to life had been shorted when "women and children first" was proclaimed as the order of evacuation.</div>
<div> </div><div>When abstract rights hit the judicial fan, legal difficulties are spread over a large area, even creating even legal fog so impenetrable as to make progress more difficult for those whose aim is to move forward rapidly. By their very (alleged) nature "fundamental and transcendent human rights" rights are incommensurable. Yet a balance has to be struck, in a specific time and context. What is the proper balance between "freedom of speech" and "ordre public"? Moving to economic and social rights, balancing inevitably faces the "wailing wall of scarcity". And what would be appropariate means of redress? Compensation? Return to the status quo ante? Meting out justice may be difficult when appropriate means of redress fail or are too coarse to satisfy the blindfolded lady.</div>
<div> </div><div>Such "balancing" may take place in a court of law - with its obligation to "due process" and respect for precedent. In human rights, such precedent is scant, given the legal history, so each decision is precedent, which would make the court even more cautious. It is a ponderous process, slow, and one likely to create much collateral damage to parties who only have an indirect interest in the outcome. Impartiality of the legal system trumps political legitimacy - hence the complex and indirect system of chosing the judges. Many frowm upon delegating such vital matters to the idiosyncrasies of a handful of judges.</div>
<div> </div><div>Such "balancing" may take place within the political process - it lacks transparency, and is chronically prone to power politics.</div><div> </div><div>The choice between these venues is itself a political issue. </div>
<div> </div><div>Last year, exemplary punisment was meted out to a man who man who had committed grievous family violence in Zurich. The victims openly and violently expressed their disagreement with the result. Why? They had to live with the consequences - and one of them was effectively "court-ordered divorce". A judgement may be akin to surgery - always painful, sometimes effective, and in any case destructive of the integrity of the system. Asian civilisation made the cultural choice not to use surgery, which has been a Western tradition since paleolithic times.</div>
<div> </div><div>In the ongoing discussion over "human rights" I offer these lines as basis for reflection, not as resolution of the quandary. There is none, and the binary trope right/wrong, the claim that we can ascertain "the truth" is to me a dangerous delusion. We may be too quick of the draw of the legal pistol. Again, this is a cultural trait. The Greek system of battle pitted falanx against falanx in an clash lasting at most a day. The battlefield was the unique and ultimate judge of the quarrel. The hoplites were farmers and, for good or bad, they had to go back to tending their fields.</div>
<div> </div><div>Aldo</div>