Legal Theory Lexicon: The Law Is A Seamless Web

F.W. Maitland, the famous legal historian wrote, "Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web."  (A Prologue to a History of English Law, 14 L. Qtrly Rev. 13 (1898))  Maitland didn't actually say that the "law is a seamless web," but he is usually given credit for the idea that the law forms some kind of "organic unity" or is characterized by strong interconnections.  The idea that law is seamless web is ambiguous--the aphorism expresses different ideas on different occasions.  This post in the Legal Theory Lexicon series will explicate the seamless web metaphor and its several implications for legal theory.

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Legal Theory Lexicon: Contractarianism, Contractualism, and the Social Contract

Some of the key conceptual tools deployed by legal theorists are likely to be familiar to most law students from their undergraduate education.  One of these is the notion of the "social contract"--familiar from Hobbes, Locke, and Rousseau.  But unless you were an undergraduate philosophy major or have some graduate work in philosophy, you may not be as familiar with some of the ideas that have grown out of the social-contract tradition.

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Shin on Unconscious Discrimination

A steadily mounting body of social science research suggests that ascertaining a person's conscious motives for an action may not always provide a complete explanation of why he did it. The phenomenon of unconscious bias presents a worrisome impediment to the achievement of fair equality in the workplace. There have been numerous deeply insightful articles discussing various aspects of this problem and canvassing its implications for antidiscrimination law.

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Advaita Vedanta - Adi Sankara's views

Adi Sankara's treatises on the Upanishads, the Bhagavad Gita and the Brahma Sutras are his principal and almost undeniably his own works. Although he mostly adhered to traditional means of commenting on the Brahma Sutra, there are a number of original ideas and arguments. He taught that it was only through knowledge and wisdom of nonduality that one could be enlightened.

Sankara's opponents accused him of teaching Buddhism in the garb of Hinduism, because his non-dualistic ideals were a bit radical to contemporary Hindu philosophy. However, it may be noted that while the Later Buddhists arrived at a changeless, deathless, absolute truth after their insightful understanding of the unreality of samsara, historically Vedantins never liked this idea. Although Advaita also proposes the theory of Maya, explaining the universe as a "trick of a magician", Sankara and his followers see this as a consequence of their basic premise that Brahman is real. Their idea of Maya emerges from their belief in the reality of Brahman, rather than the other way around.

Sankara was a peripatetic orthodox Hindu monk who traveled the length and breadth of India. The more enthusiastic followers of the Advaita tradition claim that he was chiefly responsible for "driving the Buddhists away". Historically the decline of Buddhism in India is known to have taken place long after Sankara or even Kumarila Bhatta (who according to a legend had "driven the Buddhists away" by defeating them in debates), sometime before the Muslim invasion into Afghanistan (earlier Gandhara).

Although today's most enthusiastic followers of Advaita believe Sankara argued against Buddhists in person, a historical source, the Madhaviya Sankara Vijayam, indicates that Sankara sought debates with Mimamsa, Samkhya, Nyaya, Vaisheshika and Yoga scholars as keenly as with any Buddhists. In fact his arguments against the Buddhists are quite mild in the Upanishad Bhashyas, while they border on the acrimonious in the Brahma Sutra Bhashya.

The Vishistadvaita and Dvaita schools believed in an ultimatelysaguna Brahman. They differ passionately with Advaita, and believe that his nirguna Brahman is not different from the Buddhist Sunyata(wholeness or zeroness) — much to the dismay of the Advaita school. A careful study of the Buddhist Sunyata will show that it is in some ways metaphysically similar as Brahman. Whether Sankara agrees with the Buddhists is not very clear from his commentaries on the Upanishads. His arguments against Buddhism in the Brahma Sutra Bhashyas are more a representation of Vedantic traditional debate with Buddhists than a true representation of his own individual belief. (See link: Sankara's arguments against Buddhism)

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Media Links & Blogs

Links- Media/Blogs

• Asia Tribune-2007 Spe Salvi
• Blogs & Videos Since 2005
• CHRM site-domestic inquiries
• Citehr- Maslow's peak experience
• Colombo Today- 2009- Center of Excellence
• Daily News -2002 e-Consciousness
• Receiving the Mayor of Vandeheim-2006
• Satellite interview with Prof.Tony Nader- 2000
• SL Govt Official News Portal
• Sri Lanka Inst of Directors- Managing with head & heart
• Sri Lanka today news on IT center
• Sri Lanka UN Fr Org News 2006
• Sunday Observer-2003- Pulse of harmony
• Sunday Times-2002 Going beyond the outer show
• Top 100 Science Professor Blogs -Psychology
• With Dr.Samanta KITT University

Ramayana & Historical Rawana- Latest Book By Mr.N.C.K Kiriella

Prof.Madurasinghe's foreword to this new book....

Sri Lanka is at a point of transition. The resultant collective consciousness will provide an ideal platform to critically re-examine certain historical and cultural assumptions carried over the years and a willingness to open to a paradigm shift in thinking. It is natural when critical  scholarship progresses, new names, places, and traditions will emerge challenging hitherto accepted views. This is an inevitable aspect of growth and progress if we embrace them with a spirit of humility and transcend the barriers of petty partisan polemics.

 

This book 'Ramayana & Historical Rawana' edited by Mr.Neil Kiriella  is a valiant attempt to capture such new findings and bring in historicity to our legends aimed at the general public. This effort is indeed salutary and hopefully will lead to a lively debate and help untangle many webs woven around the pre- historical myths that have been passed down from generation to generation.

 

There is a growing body of emerging research to suggest that modern human beings evolved in South Asia, South-East Asia, and perhaps in South China. This challenges the widely held view that they originated inAfrica. This will drastically change the current views we hold about our pre -history.

Dr. Siran Deraniyagala, Former Commissioner of Archaeology , at a discussion held at the Hotel Sigiriya in Dec 2000, as well as at several lectures he delivered subsequently stated that as a result of radiocarbon- tests and excavations carried out in the recent years, the picture of our early civilisation is beginning to drastically change.

The discovery of cultivation of oats and barley, and herding about 10,000 years ago (initially at 17,000 B.P.) in the Horton Plains has given a totally new dimension to what has been known about the origin of farming and herding in the world. It has so far been assumed that it was West Asia, South-East Asia and East Asia, which formed separate cradles of revolution in the subsistence strategy. But now we have yet another nucleus - namely, South Asia.

 

This research was taken further by Dr. D.T. Hawkey of Arizona State University, where she used dental morphological traits to establish the genetic distance between populations. It is comparative work of the greatest value, and what she says is that these dental traits are genetically determined, and have nothing to do with environment. She has done comparative work not only on the Sri Lankan population but various Indian groups and further a field into West Asia and South-East Asia on the one hand, and Australia on the other. She has come up with important results on the genetic affinities of our prehistoric humans. This has confirmed the results of the earlier work done by Cornell University.

There is a large volume of  evidence to suggest that Sri Lanka was a major player on the world stage. WhileChina was still engaged in formative and destructive wars, Sri Lanka had great kings, great art and monumental works of irrigation and buildings. This little island was evidently on a par with ancient Greece, Ancient Rome and Egypt of the Pharaohs. Long before the Romans (400 BC), Sri Lanka had hydro spas, swimming pools, public baths with spray-jet showers, major irrigation reservoirs and hydro-engineering skills that worked accurately to a fall of one inch in one kilometre.

In the light of emerging evidence , it is also salutary that a vast of people have started to appreciate an ancient ruler who lived in Sri Lanka by the name of Ravana. This name became familiar to people from the story of Rama and Seetha in Valmiki's Ramayana, which is the oldest edition of Ramayana and is the source of all Ramayana that is relevant in various cultures .  King Kumaradasa who lived in the sixth Century AD authored Janakiharana which reflects the Rama-Seetha story that was popular among the masses.

 

Legend has it that  King Ravana was  a very learned and pious man, a wise, just and peaceful Ruler, a loving husband, a fond father & brother. A famous flutist & composer well versed in Vedas, Angas and Sastras. He is called Dasis Ravana which means the king with 10 great talents. He was a descendant of Surya Wansha and Hela Raskshasa tribe. (Ancient Sinhalese tribe) He was one of the best fighters in Angampora, the traditional martial arts of the people.

King Dasis Ravana was a great Scholar in Ayurvedic medicine. He was the person who invented Arka Shastra. The book Arka Prakshaya reveals this truth to the present world. He wrote several books revealing the cures for many diseases. In one book he wrote "Eating beef is the cause to infect ninety eight new diseases to human beings. The book "Kumara Tantraya" which reveals the treatments for infant diseases was written by him accepting the request of his pregnant queen Mandodari. 

In available records Ravana also emerges as a just ruler who governed the country very well. There was internal peace and no feud. He was the head of civil, judicial, military and spiritual administration of his vast and extensive realm. There was obedience not through fear but out of love for the safety of the peace-giving monarch. Harmony prevailed.

Legend also has it that Ravana had his abode on the summit of an awesome rock,  and that his kingdom ofLankapura surrounded it. It is said that the rock itself was used as a device rather like a sundial to calculate time in his kingdom. In ancient times this rock was known as Lanka Pabbata or Lankagiri, both of which mean Rock of Lanka.

Going down to the southern coast to Galle is another interesting place associated with the Rama and Sita legend. It is a mountain called Rhumassala Kanda. From the top of this mountain you get a panoramic view of the Galle harbour and its environs. On a clear day you could even see Adam's Peak, Sri Pada.

As the author skillfully navigates from ancient legends to historical sites and dwells on Brahmi scripts , Rock inscriptions and Asura Empire, you will surely find it a rich source of many challenging views that may appear contrary to what you have hitherto believed. That would then serve the purpose of the authors well indeed !! "In Sri Lanka there is historical and archaeological evidences Rishi Thrunabindu, Rishi Pulasthi, Rawana and his dynasty. Taking all these into thought an attempt is made to indicate the incidents that meet recorded history. The reader may be puzzled by the differing theories of the origins and its analysis."

 

 

Ramayana Research Team

Kings of Sri Lanka   

Home Page 

 

 

Human Physiology and Veda

The Unified Field of Natural Law

From Prof.Tony Naders' book: Modern science has located the home of all of the Laws of Nature as a Unified Field, which gives rise to and administers the entire universe through its own self-interacting dynamics. It describes this field as the unified source of the four fundamental forces of Nature, from which all force fields throughout the universe are derived.

The above diagram shows the four fundamental forces of Nature, from which all force fields emerge. Modern science has discovered that these fundamental forces are unified on the level of the Unified Field.

 

The Unification of the Four  Fundamental Forces of Nature is the Unified Field of Natural Law

This discovery is described mathematically by the Lagrangian of Superstring Theory, which presents the detailed structure of the Unified Field.

Maharishi's Vedic Science identifies the Unified Field as an unbounded field of consciousness—an eternal, silent ocean of intelligence that underlies all forms and phenomena. This field of pure consciousness is the unified element in Nature on the ground of which the infinite variety of creation is continuously emerging, growing, and dissolving.

Maharishi has provided a profound account of how this purely abstract field expresses itself into material creation. In his description, he explains how fully awake, self-referral consciousness moves within itself, and in this self-interaction it unfolds its own, infinitely dynamic structure. This dynamic structure is the totality of all the Laws of Nature that create and administer creation; this same structure is found in the forty branches of Veda and the Vedic Literature.

Veda and the Vedic Literature in Human Physiology

This historical discovery is that the human physiology, including the DNA at its core, has the same structure and function as the holistic, self-sufficient, self-referral reality expressed in the forty branches of Veda and the Vedic Literature. He explains that each of the forty branches of Veda and the Vedic Literature can be located in both structure and function in the human physiology.

Vyakaran

For example, Maharishi describes Vyakaran as the branch of the Vedic Literature that embodies the expanding quality of self-referral consciousness. The tendency of Veda to sequentially elaborate itself—to unfold from its first syllable to the forty branches of the Vedic Literature—is expressed by Vyakaran. Raja Raam locates the similarity between this expansive tendency and the function of the hypothalamus. The hypothalamus releases factors that activate the pituitary gland, neurohypophysis, and the autonomic nervous system. These releasing factors represent the expansion necessary for the evolution of the endocrine and autonomic response, which leads to biochemical and physiological responses that bring the system to a new state of balance.

Structurally the Ashtadhyayi, the principle text of Vyakaran, is comprised of 8 Adhyayas (or chapters) of 4 Padas (a metrical unit) each, totaling 32 Padas. Similarly, the hypothalamus is comprised of 8 regions—anterior, posterior, middle, and lateral, right and left—with 4 nuclei each, making 32 nuclei, corresponding to the 32 Padas of the Ashtadhyayi. Raja Raam noted a correspondence between each Pada of the Ashtadhyayi and specific anatomical functions.

Vyakaran and the Hypothalamus

This diagram illustrates a cross section of the cerebral cortex and a highlight of the anterior hypothalamus areas, corresponding to the first and second chapters of Vyakaran. The 4 nucleii in each area correspond to the 4 divisions of each chapter. The other three chapters have been similarly correlated with different aspects of the hypothalamus.

Nyaya

A second example of the relationship between Veda and the human physiology is Nyaya, the branch of the Vedic Literature that Maharishi describes as the embodiment of the distinguishing and deciding quality of consciousness, which simultaneously comprehends opposite qualities of consciousness.

Nyaya corresponds functionally to the thalamus, which relays sensory inputs to the primary sensory areas of the cerebral cortex, conveying information about motor behaviour to the motor areas of the cortex. Structurally, there are 10 Ahnika (chapters) of the Nyaya Sutras, and 10 areas of the thalamus: rostral, medial, lateral, caudal, and intralaminar, each found on both sides of the brain. Furthermore, while the Nyaya Sutras describe 16 topics of reasoning (Pramana, Prameya, etc.), the thalamus functions through 16 groups of cells called nuclei.

The first of the 16 areas of Nyaya (Pramana) corresponds to the first nuclear group of the thalamus called the pulvinar. Pramanahas 4 subdivisions—Pratyaksha (direct perception), Anumana(inference), Upamana (comparison), and Shabda (verbal testimony)—which correspond respectively to the 4 subdivisions of the pulvinar. The first subdivision connects the superior colliculus with areas of the cortex and is responsible for higher order visual integration—i.e. perception (Pratyaksha). The second connects the superior colliculus and the temporal cortex with areas of the cortex and of the temporal cortex. These areas are involved in functions such as vision, hearing, memory, and language—together they are at the basis of processes of inference (Anumana). The third part of the pulvinar connects the parietal cortical areas back with other parietal cortical areas, and is responsible for polymodal sensory integration. This area gives a higher order perception about sensory inputs in relation of one with the other, serving the function of comparison (Upamana). The fourth connects the temporal cortex with the superior temporal gyrus and is responsible for memory, language, and speech. This is the basis of verbal testimony (Shabda). The fifteen following categories of Nyaya are similarly linked to different aspects of the thalamus, in structure and function.

Nyaya in the Thalamus

In this diagram, we see (on the right) a view of the thalamus with its 16 nuclei. On the left, we see the names of the nucleii and the 16 aspects of Nyaya to which they correspond.

Click for details of Prof.Tony Nader's book

Vagueness and Ambiguity

This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation.  Some legal texts are ambiguous--they can have two or more distinct meanings.  And some legal texts are vague--they use concepts that have indefinite application to particular cases.  And some legal texts are both vague and ambiguous--they have multiple meanings, some (or all) of which have indefinite applications.  Because "vagueness" and "ambiguity" are basic concepts in the theory of interpretation, its important to master each of them and to understand the difference between them.

As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

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Ellis on Voter Identification Laws

This article argues that photo identification laws represent a continuation of the use of economic forces as a way to block people of lower economic status from participation in the electorate. These laws are similar to other restrictions on the franchise, such as property requirements and poll taxes, because the rules required the voter to demonstrate the ability to meet an economic test – the ability to show a certain property value, the ability to pay a tax, or the ability to obtain a photo ID. The potential effect of such photo-voter identification laws is that the voters at the lowest end of the socioeconomic scale are effectively excluded from voting because they are the least able to afford the cost of voting exacted by the law. This article contends that this type of exclusion is antithetical to the nature of democracy and ultimately constitutes a tyranny of the majority against the minority at the lowest level of socioeconomic status. This article begins by providing an overview of American photo-identification laws and discussing the modern cost of voting to the voter. Then it will discuss the history of voter access in the United States, with a focus on Harper v. Virginia, which held that the ability to pay a poll tax had no relationship with the right to vote and, the paper contends, articulated a vision of the right to vote unencumbered by class bias. The paper will then consider the potential socioeconomic impact of photo identification laws upon voters and how those impacts are similar to historical class-based discrimination. It will examine how the courts have been indifferent to the costs levied upon on the right to vote by voter identification laws – most recently in the Supreme Court's decision in Crawford v. Marion County – and how that indifference tracks the conflict over the socioeconomic burdens of voting raised in Harper. Finally, the paper will recommend how to reframe the standards articulated in Harper to take into account this structural socioeconomic bias inherent in, and damaging to, the right to vote.

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A Theory Of Legal Argumentation

What is to be understood by 'rational legal argument'? To what extent can legal reasoning be rational? Is the demand for rationality in legal affairs justified? And what are the criteria of rationality in legal reasoning? The answer to these questions is not only of interest to legal theorists and philosophers of law. They are pressing issues for practicing lawyers, and a matter of concern for every citizen active in the public arena. Not only the standing of academic law as a scientific discipline, but also the legitimacy of judicial decisions depends on the possibility of rational legal argumentation. 

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Cohen on Wartime Cases & the Lessons of History

References to the "lessons of history" are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration's reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the "lessons of history." They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated. 

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International Law

On 17 December 2009, the Rome I Regulation (EU Regulation 593/2008) on the law applicable to contractual obligations comes into force and will be directly applicable in all EU Member States with the exception of Denmark. When we last reported on the draft Regulation, the UK was still considering whether to opt in. It decided to do so and a statutory instrument, The Law Applicable to Contractual Obligations (England and Wales and Northern Ireland) Regulations, adopting the EU Regulation into national law, will also come into force on 17 December. This will replace the Contracts (Applicable Law) Act 1990, which will then only apply to contracts concluded before 17 December 2009.

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Redundancy

Predictions that the number of redundancies in the UK would rise sharply during the credit crunch have been substantiated by the figures from the Office for National Statistics. The impact of the economic slowdown has also been demonstrated by fewer job vacancies and a rise in the number of redundancies particularly in the finance, business services and construction industries. 

Redundancy is one of the most traumatic events an employee may experience. Announcement of redundancies will invariably have an adverse impact on morale, motivation and productivity. The negative effects can be reduced by sensitive handling of redundant employees and those remaining.

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Spe Salvi facti sumus……in hope we were saved

In the encyclical about hope running into about 75 pages, Pope Benedict is not proposing a facile hope in heaven undoing injustices of life on earth. Indeed, this is where he brings in Dostoyevsky. The Pope asserts that "the last Judgment is not primarily an image of terror, but an image of hope". A world without God is a world without hope, and "God is justice". Only God can provide the justice that sustains hope in the better future—the eternal life—for one and all. "God is justice and creates justice. This is our consolation and our hope. And in his justice there is also grace. This we know by turning our gaze to the crucified and risen Christ. Both these things—justice and grace—must be seen in their correct inner relationship."

With justice comes grace, yet "grace does not cancel out justice. It does not make wrong into right. It is not a sponge which wipes everything away, so that whatever someone has done on Earth ends up being of equal value. Dostoyevsky, for example, was right to protest against this kind of Heaven and this kind of grace in his novel "The Brothers Karamazov". Evildoers, in the end, do not sit at table at the eternal banquet beside their victims without distinction, as though nothing had happened."

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Abolishing death penalty

The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice.

It violates the right to life as proclaimed in the Universal Declaration of Human Rights.

Amnesty International opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.

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What legislation covers discrimination on the grounds of religion or belief in the UK?

The principal legislation governing discrimination on the grounds of religion or belief in the UK is:

• Race Relations Act 1976
• Employment Rights Act 1996 (especially sections 45 and 101 which protect shop and betting workers who do not wish to work on Sundays)
• Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003 (SI 2003/2037)
• The Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) - these apply across England, Scotland and Wales
• The Employment Equality (Religion or Belief) (Amendment) Regulations 2004 (SI 2004/437)
• Equality Act 2006.

Most employment claims involving religion are brought under The Employment Equality (Religion or Belief) Regulations 2003 which came into force on 2 December 2003 and have already been amended and will be consolidated into a single Act if the Equality Bill comes into force. See question below on future developments.

These Regulations implement the religious discrimination aspects of EC Equal Treatment Framework Directive (2000/78/EC). In addition, the following aspects of the European Human Rights Convention are relevant and will be relied on by some employees:

• Article 9 - guarantees freedom of thought, conscience and religion
• Article 14 - provides that rights and freedoms shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Legislation primarily applying outside employment includes:

• Part 2 of the Equality Act 2006 which came into force on 30 April 2007 now provides protection against religion or belief discrimination in the wider area of the provision of goods, facilities, premises and the exercise of public functions.
• The Employment Equality (Sexual Orientation) (Religion or Belief) (Amendment) Regulations 2007 (SI 2007/1263) - makes minor amendments to the provisions in the 2003 Regulations dealing with discrimination by qualifications bodies and providers of vocational training. The Regulations came into force on 14 September 2007.

CIPD Resources

Vatican welcome to Anglicans boldest move since Reformation

The Vatican launched an historic initiative Tuesday to make it easier for disgruntled Anglicans worldwide to join the Roman Catholic Church. The church said the move was not a swipe at the Anglicans but it could nevertheless result in hundreds of thousands of churchgoers unhappy with openly gay and female clerics defecting to Rome.

Pope Benedict XVI gave his approval to a new framework to bring back into the fold Anglicans who oppose their church's liberal stance on gay marriage and the ordination of women priests and gay bishops while allowing them to retain some of their separate religious traditions.

The move comes nearly 500 years after Henry VIII's desire for a divorce led him to break with Rome and proclaim himself as the head of the newly formed Church of England in 1534. The framework is the Vatican's most sweeping gesture toward any schismatic church since the Protestant Reformation in the 16th century and the Thirty Years' War that followed it in the 17th century. That war ended with the Peace of Westphalia in 1648, which acknowledged the right of monarchs rather than the Vatican to determine their national faiths, prompting Pope Innocent X to declare the document "null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of meaning and effect for all time."

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A BALANCED APPROACH TO CHANGE

Introduction:

    1. "Change" is the word for the 90's.  To some change means progress; for others it poses a threat.  On the one hand it seems that some among us think that any change would be better than what we have and they are ready to try almost anything as long as it is new.  Others of us, however, see this as a very dangerous attitude because we see some of the suggested changes as being departures from the Biblical pattern.  Obviously there are some changes which are harmless and may be helpful, but we need to be cautious about changes that might affect doctrinal purity.  Extremes in either direction can be hurtful.  To favor change simply because it is change may lead to a rejection of New Testament authority.  To oppose a change simply because it is different from that to which we are accustomed can be a repudiation of Christian liberty.

    2. We have chosen Phil. 3:4-16 as the framework for "A Balanced Approach to Change."  Of course, Paul was not dealing with identical circumstances, but the text will show us some principles that can help us with the issue of change.


Discussion:

I. It will be Helpful for Us to Reflect on what We Left behind in our Pursuit of Pure Christianity.

     A. Phil. 3:4-6 describe Paul's former religion. In the eyes of the world, in the eyes of popular religion, his position was impressive. What is clear, however, is that he had no desire to go back to those things. The Pharisee "denomination" was something Paul had known from the inside, and he saw no merit in its traditions.

     B. Some of us have personally came out of certain denominations to embrace Biblical truth. This should have the effect of making us especially cautious in regard to changes that would move us toward the errors that we left.

     C. One thing necessary to help us to keep a balanced perspective regarding change is, therefore, that we keep in mind that the faiths and practices of denominationalism, though sometimes appealing on the surface, are worthless and destructive. We have no more reason for wanting to be like modern sects than Paul had for wanting to be like the Pharisees.


II. As We Consider Changes We must Make Sure We are not Pursuing the Wrong Goals.

    A. While the text expresses it in several ways, the only thing that mattered to Paul was that he please Christ, being acceptable to Him (Phil. 3:7-11).  The context names things especially related to his Jewish heritage (Phil. 3:4-6), but "all things" are meaningless compared to being accepted by Christ.

    B. There is a particular temptation to make and our religious practices more compatible with things considered "important" to the world.  However, here are some things we must guard against:

    1. An inordinate obsession with numbers and budgets.  It sometimes seems that "church growth" has become an end in itself.

    2. The desire to be intellectually sophisticated.  Is this what is behind the idea that a "new hermeneutic" must replace what is considered to be "simplistic pattern theology"?

    3. Pressure to be "politically correct."  For example, to continue to forbid women to preach will label us as "sexists."

    4. Compatibility with culture.  Proposed changes in music would (allegedly) be more appealing to an entertainment-oriented society.  Some are asserting that drama is more preferable to preaching sermons.


III. But a Balanced Approach regarding Change also Requires that We Understand that Some Changes will always Be in Order.

    A. Paul did not claim perfection (Phil. 3:12-14).  Where there is room for growth, there is room for change.  This is not always what those calling for change mean, of course, but personally we must admit our lack of perfection.

    B. In one sense, therefore, we can speak of a completed restoration. On the other hand, we should realize that restoration is never complete, so long as we have not "already attained, neither were already perfect."

    C. As an over-reaction against radical calls for change we may resist even Scriptural and helpful improvements.

    1. It is folly not to accept changes in the way we do things when such changes are Scriptural and expedient.  History will show that things now generally found to be useful were historically resisted because they represented change.  (For examples, Sunday classes, individual communion cups, etc.)

    2. It is the heresy of presumption to condemn others for changes that are not violations of Scripture, even though they are different from that to which we have been accustomed, and even though we may doubt their value (cf.  Deut. 18:20.)


IV. It Is Essential, however, that We never Give Up what has already been Attained in Faith and Practice.

    A. The NASB renders Phil. 3:16, "However, let us keep living by that same standard to which we have attained."

    B. The principle applies to both personal holiness and the practice of the church.  Today we should be committed to New Testament Christianity. We should insist that the Bible be our only standard.  Appropriating the words of Paul, the point is that we must be faithful to what we have already found to be right (cf. 2 John 1:9.)

    C. Our concern for this will make us cautious.

    1. Some changes which at first seem acceptable may be, in actuality, stepping-stones to error.

    2. Things may be in the realm of judgment, but would be bad judgment.


Conclusion:

    Certain key questions are always in order when changes are suggested: Is it Scriptural?  Is it safe?  Is it really profitable?  And, do others have a Scriptural right to choose this change, even if it is not my personal choice?

Ideas expressed by David Pharr

Working time -Recent Cases

HM Revenue and Customs v Stringer and Others
[2009] IRLR 677, HL

Following guidance from the ECJ the HL eventually decided that workers absent from work on long term sickness absence since the start of the leave year, who had exhausted both their contractual and statutory sick pay, did accrue statutory holiday and should be allowed to take that holiday. The HL also ruled that claims in relation to statutory holiday pay can be brought as a claim for unlawful deductions from wages under the Employment Rights Act 1996 (ERA). Annoyingly some other issues did not form part of the HL decision such as:

• As the Working Time Regulations do not provide for holiday to be carried over if a worker on sick leave is refused holiday, can that holiday entitlement be carried over and be taken in a subsequent holiday year?
• Can such a worker only be paid in lieu of the holiday on termination?

As some issues remain unresolved, we attempt to set out below practical steps employers can take, bearing in mind that the law is still grey in some areas. In Stringer the ECJ gave some guidance saying that under the Directive:

• Workers on sick leave can accrue the four weeks' paid holiday while they are on long-term sick leave (This does not apply to all of the 28 days applicable under the UK legislation).
• Workers must be allowed to take this accrued holiday on their return to work.
• Any national rule which prevents workers actually taking paid leave during sick leave is permissible, as long as the worker then has the right to take their leave at another time (that is when they return). Similarly a national rule which allows workers to take paid annual leave during sick leave is also allowed.
• It is not lawful to provide that the right to annual leave is lost at the end of a leave year where the worker has been on sick leave.
• Where the employment relationship is terminated, workers are entitled to take the leave or to any pay in lieu of the holiday which was not taken due to illness. This is the case even where the worker was on sick leave for all or part of the leave year in question.
• Accrued statutory holiday not taken due to sickness can be taken at a later date - even if it is during the next leave year.

Implications for employers:

• Employers must provide all workers including those on long term sick leave with at least the four weeks EU annual leave in the usual way. (Of course in the UK leave entitlement is more than four weeks, that is 28 days, but the Stringer decision does not apply to this holiday just the four week part of it).
• Under the UK's current Working Time Regulations (WTR) employers can apparently insist that leave must be taken in the year in which it is due; although this seems inconsistent with the ECJ's judgement in Stringer and so new legislation may be needed.
• Workers may have a right to carry leave over into the next year if there is a contractual right to do so, or if or the employer has refused permission for the employee to take the leave.
• On termination, but probably not during employment, workers have the right to be paid in respect of accrued but untaken holiday entitlement.
• Employers may incur increased costs in relation to workers who return (or leave) following long-term sick leave.
• Employers should check private health insurance schemes and may be better off not providing these and dismissing the long-term sick earlier rather than later.
• Workers who are absent for years on permanent health insurance could accumulate a considerable right to annual leave (and pay in lieu). It is not certain if that would be payable by the insurer, but insurers may attempt to deny cover.
• At the very least, employers should focus on managing sickness absence to ensure the employees return to work as soon as possible.
• If the employment relationship ends, workers are entitled to a payment in lieu in respect of untaken leave due to sickness (even if the worker is absent for all or part of the leave year in question).
• In the UK it appears that accrued statutory holiday not taken due to sickness does not have to be carried over and taken during the next leave year if the worker returns to work in the next leave year. However as this is unlikely to affect many employees and the ECJ have expressed the view that they should be allowed to take it, employers may wish to consider allowing those who are affected to carry the leave over.
• Employers should always remain wary of denying holiday pay to workers who have been absent for part of the year.
• As the EU cases refer to the four weeks holiday under the Directive, employers must decide how to deal with the additional holiday conferred by the UK WTR (and/or any contractual holiday). This must be dealt with in sickness, or absence policies.
• The ECJ judgment does not entitle workers to accrue the additional holiday during sickness absence, although employers may wish to allow this. If they do not, disability discrimination issues may arise and treating the extra holiday entitlement differently may be difficult for personnel departments to administer. Alternatively employers may limit any holiday which accrues during sick leave to a maximum of four weeks holiday as long as the relevant policy says so.
• Employers must review current holiday policies to decide how they wish to deal with untaken holiday at the end of the leave year, at least as far as those on sick leave are concerned.
• The cases do not deal directly with other areas of the law and it is unlikely to further affect other common long term absences such as ordinary and additional maternity leave. It is already well established that employees accrue annual leave during the whole maternity leave so employers usually allow the statutory annual leave to be taken at the end of maternity leave or to make a payment in lieu.
• Perhaps subsequent cases may address similar issues concerning paid holiday during, for example, a long term sabbatical. A carefuk employer may require workers to take their annual leave during a sabbatical.
• As the law is now going through a process of change employers must be very careful with employees who are on long-term sick leave as they are also likely to be protected by the Disability Discrimination Act 1995.
• Any unpaid pay in lieu of annual leave can be a 'deduction from wages' and it is therefore possible for workers to claim in respect of a series of deductions for up to six years.

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