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Regulation of the professions in East Asia

Lilienthal, Gary I. and Ahmad, Muhamad Hassan (2023) Regulation of the professions in East Asia. Social Issues, Justice and Status . NOVA Science Publishers, New York, USA. ISBN 979-8-88697-409-6

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This book delves into the “mechanics” of the "fit and proper test", as it functions around the world as de facto Imperial legislation, emanating from Western Europe, and followed without further analysis by systems of governance in East Asia. The meaning of the term “fit and proper”, for assessing people as professionals, in contrast to a well structured good character test, is insufficiently specific to be used as a set of criteria for admission to a profession. The parties to a “fit and proper” assessment are actually the court and members of the public, with the court making a judgment in its own cause, and without the public ever participating in the assessment. A “fit and proper” assessment suggests a systemic inquiry against the applicant, inferring both bias and inherent public denunciation. In today’s western capitalist states, which use the Imperial "fit and proper” test for assessing the propriety of professionals, the rule of kings is gone, so that the bourgeoisie now rules by both domination and by hegemony, free of royal humunculus, where domination is rule by force and hegemony is rule by consent of the working class. This is coordinated by professional advice to subaltern masses, as a de facto transmission of bourgeois ideology, where the advice is set up to have essential value to them. The ‘historical bloc’ is a structural conception that coordinates society just as a king used to do, by use of references to bundles of myths as historical forces. Now, the dominant bourgeoisie must form a unified ideology to articulate this unified ideology to the masses, as a deliberately formed subaltern group, and project onto them what they have learned in their years of higher education. When the masses nevertheless fail to consent, either actively or passively, the state resorts to the exercise of coercive power over them by legally enforcing discipline onto such recalcitrant groups. Similarly, in former times, the king had power to create and dismantle professions, by means of proceedings in quo warranto. The so-called freedom of the city was the device by which the right to make a professional level of living was enforced, now turned into professional regulation. Through this process and structure, the mercantile gilds became today’s hegemonic professions. The historical bloc forming a superstructure to keep these professional groups in this hierarchy amounted to the public fear of deceit in the trades. These hegemonic groups are created and formed deliberately, as subaltern groups, by the constituents of Civil Society, which included the churches, the schools and the NGOs. They deploy the priestly precept of the mysterium tremendum, as a great or profound protean mystery, so that it provides an opportunity for public manipulation of reality. There is therefore an inferred nonpriestly subaltern mass of assumed religious adherents, whose reality is controlled by public practices of forced remembrance, but with operative alterity really having existed prior to the commanding group’s cognising its own apparent moral superiority. If emerging language placed alterity into a structure of existence, then there must have been a second level of alterity, where the one level forever corrected the other, with the first other imagining it had a right from birth to correct the second “fallen” other by altering the canonisation of the meaning of words. This is the professions in their formative phase. In this way, Luther had used gospels to replace, and alter at will, the deity itself, rendering the deity protean, suggesting the construction of a descending chain of meanings between the deity and the gospels. This implies a subaltern group is somehow morally obliged to the commanding social group through the commanders’ moral altitude. To stabilise this social paradigm, women are structured as unifying signifiers, subject at any time to command alteration of the doxa within their significations, to bind together both alterity and the confected religious institution version of the ancient custom of matrimony, in order to command the entire human project of propriety. When propriety is apparently violated, in the view of the commanding elements of society, they use commonplace to attack the target person’s past life events. It sets out to amplify only what the public mind has already acknowledged and hated. It allows the assumption of a mere indicium of hypothesis of guilt, regardless of overwhelming evidence to the contrary. This had allowed délation to rise to the rank of high sacred duty, filling the land with spies, rendering every man an object of suspicion by hegemonic groups. Consequent denunciation, in outline, was to reveal the hidden, to collate small pieces of knowledge gleaned from individuals into a general corpus of understanding, and last, therefore, to protect the state from its opponents. This was a mass exercise in weak inductive reasoning, but persuasive to public opinion. It allowed public debate to convert a paramount duty to save the state into an individual duty and derived right of denunciation. The Jacobins tried to resolve the contradictory locus of the “sovereign people”, as it validated all folk maxims, by grounding the Terror in the expulsion of its opposition. Now, they could peer into the darkness of a newly voiceless imagined opposition personality or character, to make this imaginary secret public. This suggested the genesis in removal of political opposition of declaring a person not "fit and proper". Such "fit and proper" administrative determinations were in the nature of an asystatic question, specifically the asystatic question of “disreputable”, incapable of stasis because it did not have any issue. Without stasis, it could never, in logic, be judged. Thus, the subaltern groups, such as professionals have been constructed to receive less justice from their superior professional associations, while those inside the professional associations are protected as reputable merely by their own definition. To satisfy the axiom of modern stasis, accusing someone of violating either a legal or a moral norm must specify the violated norm, which must be neither unstable nor overly strict or absolute in liability, or else everyone breaches it. With everyone breaching confected moral norms, by dint of the way they are defined, those who command society through bourgeois hegemony may choose at will who to denounce with commonplace. This capriciousness is made easier by deliberate creation of a long term working class, as followers, clients of the bourgoisie, and who are unable to escape their subaltern status. Thus, since children are most easily managed and are not as aware of their rights, the use of child labor significantly prevents the development of children. In Iraq, for example, children’s economic exploitation has now become the norm, preventing them from going to the schools and enjoying any opportunities for social integration. This suggests that the natural hegemonic consequences of the US invasion of Iraq created a long-term working class, unaware of its potential, through the restrictions on it to access to education and to achieve social integration. But what of "fit and proper" people, when they take a job as an employee? These are very highly trained people, at a level of substantive knowledge much higher than that of line managers. When managerial principals misrepresent the terms of the employment contract, they will likely exploit their agents towards the end of the agent’s employment, as employers typically had feared agent resignation in the early stages of the agreement. A "fit and proper" employee could be forced to remain in a state of moral hazard until the unfair employer released him or her from the contract of employment, this force based in duties arising from judicial policies of employee subordination. These are exemplified in coercive duties to endure employer disciplinary powers. An employed "fit and proper" person can, in theory, be in an ever-increasing state of moral hazard, which automatically implies the operation on them of commonplace denunciation.

Item Type: Book
Uncontrolled Keywords: Employment Law, Regulating Professions, Fit and Proper Test
Subjects: K Law > K1701 Labor Law
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button): Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User: Dr. Muhamad Hassan Ahmad
Date Deposited: 09 Mar 2023 17:25
Last Modified: 10 Mar 2023 14:34
URI: http://irep.iium.edu.my/id/eprint/103910

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