Assignment 9 Mill

1.      What, according to Mill, is the major problem for a democracy?

 

Mill Believed there is a constant struggle between liberty and authority and are the most warred over constraints in U.S. History.  This struggle between those that govern and those that abide vs. those disobey.  Mills conclusive definition of, "social liberty," protects us from the tyrannies of our political rulers. i.e. making of laws (against; Patriot Act).

2.      Mill believes that not all laws are justified. Why not? Can you think of any existing laws that violate Mill’s principle? Do you agree or disagree with Mill? Why?

 

In 1850, Mill sent an anonymous letter (which came to be known under the title "The Negro Question"), in rebuttal to Thomas Carlyle's anonymous letter to Fraser's Magazine for Town and Country. Carlyle had defended slavery on grounds of genetic inferiority and claimed that the West Indies development was due to British ingenuity alone and dismissed any notion that there was a debt  owed to imported slaves for building the economy there. Mill's rebuttal and references to the ongoing debate in the US at the time regarding slavery were emphatic and eloquent.

 

The constitution was written for all men alike, the influences of British nationals helped to shape the country known as the United States.  But, ratification helped to pull the United States away through separation and allowed our nation to formulate it's own ideas and opinions.  Mill has a bias shaped view toward slavery in which he himself deems to be just, based upon, "genetic inequalities."  This does not go along with the basis and opening sentence that, "all are created equal," taken in literal context.

 

3.      How does Mill justify the freedom of expression?

 

Mill believes that freedom of expression should be used as a utility to further it's standpoint. he believes  it to be the strongest.  He uses ethics and morality to solidify it's standpoint playing on "good nature."

 

4.      Freedom of expression is protected by the First Amendment; are there any cases of free expression, which are not protected by the First Amendment? Do you think freedom of expression should be unlimited?

 

After several years of comparatively weak government under the Articles of Confederation, a Conventional Constitution in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and that any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected.

 

Ratification were unnecessary because of the original draft was found to be sufficient.  Over the course of the last 200 hundred years the need for reviewing certain constraints have been proven by precedence.  This precedence leads future laws "drafters," to take into consideration current trends in "family unit."

 

5.      Some scholars have suggested that the cases in which the courts have permitted states to limit religious freedom nearly always involve activities important to minority religious groups: the use of peyote by Native Americans, the practice of polygamy among Mormons and Muslims, the refusal to salute the flag among Jehovah’s Witnesses, and so on. These critics contend that the courts would not be likely to permit similar restrictions if they impacted “mainstream” religious groups in America, such as Christians or Jews. Is this criticism fair?

 

Mainstream opinion & popular votes dictate what society views to be the norm.  If the norm outweighs the individual within justified means a new law can be derived or ratification can be made.  Some of the laws and political view points can be based upon religion.  Many have argued that laws should be free from religious influence, but other religious must be taken into consideration when coming to a conclusion.  I discussed in an earlier case the use of "peyote," and it's effects on judgement.

Assignment 8 Martin Luther King

How does M.L. King argue that segregation laws are unjust?

 

Martin Luther King critiques both parties for promoting the ethical treament of people regardless of color, race, or creed.  King states, "Actually, the Negro has been betrayed by both the Republican and the Democratic party. The Democrats have betrayed him by capitulating to the whims and caprices of the Southern Dixiecrats. The Republicans have betrayed him by capitulating to the blatant hypocrisy of reactionary right wing northern Republicans. And this coalition of southern Dixiecrats and right wing reactionary northern Republicans defeats every bill and every move towards liberal legislation in the area of civil rights."  The views split between northern and southern parallels caused chaos during King's time period.  The Northen approach was deemed to be more democratic.

Why, according to King, should we disobey unjust laws?

King describes laws to to be unjust, " a code that is out of harmony with the moral law." He believed people have a responsibility because sometimes those laws could be unethical, ever changing, and out-dated.  The Constitution was brought forward during a different time period.  More ratifications should be put into lace for meeting the needs of its inherited people.

 

How does Aquinas determine if a law is just or unjust?

 

The sum ma refers to an abstract idea, derived from science, that is formulated from the nature of GOD, the nature of man, evil, consciousness, love, happiness, morality, virtues. reason, justice, society, and most relevantly law.  Due to his I.Q. he can derived from mental consciousness.  His "Treatise on Law," are no exception.  He also states, " The law is defines and separated into two categories which can also be classified; its part's and percepts are made known; its purpose and power are revealed for all.

How would a Legal Positivist judge segregation laws?

 

The definition of legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. The legal divide and validity make up the train of thought for a Legal Positive.  Reshaping functional laws and finding moral ground are the justifications for exercising this particular view point. 

Part II: Due Sunday May 26

Martin Luther King, Jr. quotes Saint Augustine’s famous remark that “an unjust law is no law at all.” It has been objected that this claim is plainly false. How can something fail to be “law” simply because it is unjust or in some other way immoral? King, himself, critics point out, was punished and put in jail for, as we would say, “breaking the law.” Assuming that King was right and the racially discriminatory statutes and practices of the South were unjust, does the fact that King wound up in jail prove that unjust laws nonetheless remain laws? Does that fact in itself refute Augustine? If not, why not?

During the civil rights era multiple forms of expression were used in combating laws and unjust treatment.  Forms such as boycotts, marches, sit-ins, and rallies where used to inform the people and to get necessary information to it's people.  Not every form was peaceful, some of the actions taken against Mr. King were done outside the guidelines of the law, i.e., "Excessive Force," this goes along the guidelines of Augustine.  An unjust law will not sit well with the people that it governs over.

Assignment 7 Charter of London

Part I: Due: Sunday May 19

What are Jackson’s arguments in support of the charter of London?

(usually referred to simply as the London Charter or Nuremberg Charter) was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted. This document, commonly known as the Charter of the Nürnberg Tribunal (or Nuremberg Tribunal) formed an integral part of the Agreement for the establishment of an international military tribunal(q.v.), which was signed in London on 8 August 1945.) (against)

What are Wyzanki’s arguments against the legality of the charter?

Charles Wyzanski’s claim’s that the Nazi soldiers were given an direct order and it is mandatory to follow whether it is moral or not. Morality and ethics vs. timing and manipulation. Wyzanski in a way implies that when a person becomes soldier, he is fighting for his people and his country. Nazi soldiers were following their order and it was their duty. Their morals cannot interfere with their command from the leaders or superiors.

Part II: Due Sunday May 19

In his defense, he was following orders, but he should know for the sake of humanity what is right and what is wrong. Rules of Engagement (ROE) are rules or directives to military forces (including individuals) that define the circumstances, conditions, degree, and manner in which force, or actions which might be construed as provocative, may be applied. These rules of engagement are applied during times of war or military conflict. They provide authorization for and/or limit on, among other things, the use of force and the employment of certain specific capabilities. In some nations, ROE have the status of guidance to military forces, while in other nations, ROE are lawful commands. Rules of Engagement do not normally dictate how a result is to be achieved but will indicate what measures may be unacceptable. When trying this case the individuals need to be also measured for “sound mind.” In a combat environment there are various circumstances in which those will be put into where, so called “deadly force,” will be used. Excessive force and lack of regard were practiced in this event.

While ROE are used in both domestic and international operations by most militaries, in the United States, ROE are not used for domestic operations. Instead, use of force by US forces in such situations is governed by Rules for the Use of Force (RUF).

Please give a short, clear, and precise answer for each of the following questions by Sunday, May 12, 2013:

Anthony K. Moffett II

HUP 109 1438

L.A.G.C.C.

Spring Term 2013

 

1. Criminal law is the body of law that relates to crime. It regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. Tort Law is a tort, in common law jurisdictions, is a civil wrong which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor. Although crimes may be torts, the cause of legal action is not necessarily a crime as the harm may be due to negligence which does not amount to criminal negligence.

 

2. Strict liability, sometimes called absolute liability, is the legal responsibility for damages, or injury, even if the person found strictly liable was not at fault or negligent. Strict liability has been applied to certain activities in tort, such as holding an employer absolutely liable for the torts of her employees, but today it is most commonly associated with defectively manufactured products. In addition, for reasons of public policy, certain activities may be conducted only if the person conducting them is willing to insure others against the harm that results from the risks the activities create.

 

3. Causality (also referred to as causation) is the relation between an event (the cause) and a second event (the effect), where the second event is understood as a consequence of the first. In common usage, causality is also the relation between a set of factors (causes) and a phenomenon (the effect). Anything that affects an effect is a factor of that effect. A direct factor is a factor that affects an effect directly, that is, without any intervening factors. (Intervening factors are sometimes called "intermediate factors".) The connection between a cause(s) and an effect in this way can also be referred to as a causal nexus.

4. A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.

Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach.

5. Justices Brennan, Marshall, Blackmun, and Stevens dissented. The dissenting opinion argued that the case did not pass the Lemon test. The secular display surrounding their secular purpose of celebrating of a national holiday could have been done without a clearly religious symbol that supports only one religion to the exclusion of others giving one group public approval of their views. Even if other religious groups are allowed to include “‘competing efforts [by religious groups] to gain or maintain the support of government’ may ‘occasion considerable civil strife’” The religious crèche is also placed in a central location within the display, which makes even less of the Court’s idea that Pawtucket was just including all of the traditional images.

6. The three-judge dissent, written by Judge Andrews and joined by Judges Frederick Crane and John F. O'Brien, by contrast, saw the case as a matter of proximate cause—Palsgraf's injury could be immediately traced to the wrong committed by the guard, and the fact of the wrong and the fact of the injury should be enough to find negligence (unlike duty, proximate cause is a matter of fact to be determined by a jury; therefore, the dissent would have upheld the jury's verdict for the plaintiff).

The dissent took note of recent expansions in New York state tort law, that allowed children to sue for the wrongful death of a parent, and spouses for loss of consortium, arguing that these expansions were based on the fact of injury beyond the foreseen injury of the deceased, and on the needs of public policy. "What we do mean by the word 'proximate' is that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics." Palsgraf v. Long Island R.R. Co. (1928).

Tookie Williams Against Clemency

Stanley Tookie Williams was an early leader of the ‘Crips’, a notorious American street gang which had its roots in South Central Los Angeles. He was convicted of three murders in 1979. While on Death Row in California, Williams became an anti-gang activist, he renounced his gang affiliation and apologized for the Crips' founding, while maintaining his innocence of the crimes for which he was convicted. He co-wrote children's books and participated in efforts intended to prevent youths from joining gangs. In late 2005, a campaign began to urge the Governor of California, Arnold Schwarzenegger, to grant clemency for Williams in consideration of his work as an anti-gang activist and asserted "redemption." Thousands of people signed online petitions calling for Schwarzenegger to commute the death sentence. Those who campaigned against the execution included celebrities, politicians, and Nobel laureates. In early November, 2005, Williams' attorneys filed his formal petition for executive clemency, as well as a motion to obtain new evidence. On December 12, 2005, Schwarzenegger denied clemency for Williams, and he was executed via lethal injection on December 13, 2005.

Mr Stanley Williams has been a menace to society. Atotal disregard for the law and the well-being of the citizens of california causing multiple homicides and diluiting his community with drug trafficking and harmful pollutents. People living in fear of the defendant making small tasks such as going to the store a fearful reality. Mr. Willaims being of sane mind took three innnocent lives, once a life is taken it cannot be brought back! Even though Mr. Williams committed reformation while being incarcerated does not change the fact that acts against the people and humanity still need to be rectified. What about those slain, where they given fair and equal treatment? Did they ask to have their lives, "ripped," away? One phrase; punishable by law!

Wendigo

 Even though religion changed the faced, and for arguments sake, let us feels a sense of remorse. However, killing an individual is nothing short of ending a person’s life abruptly. Playing God with the fates and choosing when an individual lives’ and dies is not a game. The Native American in question decided to take a life, he believed it to be a “Wendi go,” that does not give the right to commit the act of murder. The Native American in question did commit the act of murder! However, he has leeway, because he could have taken the life on one’s property giving justification to “self-defense.” More circumstantial evidence should be brought up on behalf of the defendant. The prosecution has a clear-cut way to move forward with establishing a case based upon negligence. Even though the defense is going to have a case clearly based upon the theological aspects, one must argue the fact; that were there any type of opiates taken prior to the killing of the individual. Opium related drugs are sometimes used in Native American rituals and it could have changed this individual's means of perspective. These are factors one takes into consideration when prosecuting an individual on a "capital," offense.

Anthony K.

The Model Penal code1, section 5.01 gives the following definition of attempted crimes:

“(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”


Under this definition, can Victor be convicted of attempted murder?
How would Kadish analyze this case?
What is Kadish’s criticism of the “harm doctrine” and how does it apply to this case?
According to Kadish, why do we still have the “harm doctrine”?


1. Under this definition, can Victor be convicted of attempted murder?

Danny C. Original Response,


Yes, all three premises of M.P.C.'s definition of "Attempted Rape". The first requires that one commit an act that harms another if the conditions were as if one imagined it. In other words, Victor believes that his wife is under the power of voodoo, and commences his activity. A second requirement is that one makes no (action/or inaction) to prevent the crime. Victor, once he has had enough, continues without hesitation to the completion of the act. The third premise requires a substantial step in the direction of the crime. Victor, in this case, completes the entire crime.


In response to Danny C.,


Everyday Americans go daily with attempted “murder,” thoughts floating around in their brains, with no serious attempts of actually committing the crime when it comes down to the fact. No, Victor cannot be charged with attempted crime, because the crime could be viewed from the theological" approach. The Voodooist can be viewed as conducting a religious activity that alone circumvents; because of the United States Constitution, I wanted to point this out as a response to the questions…but also from a rebuttal approach.


2. How would Kadish analyze this case?


Kadish is trying to base cases upon information vs. taking things by literati on. Also between the cases actual death in comparison to stabbing an inanimate doll, they are two different things. Implicating a man, off whimsical evidence is the primary concern.

3. What is Kadish’s criticism of the “harm doctrine” and how does it apply to this case?

Kadish argues that the "harm doctrine" is theoretically incoherent and ineffective in its goal of crime prevention. Therefore, to judge him based on the results of the outcome, whether attempted murder or murder, is nonsensical. Misdemeanors & ticketed offenses are based somewhat on a
whimsical viewpoint (nonsensical). In "layman terms," if one becomes aware of the punishment associated with a crime he/she is less likely to commit the act due to an unwanted outcome. Kadish makes this claim simply to prove the ineffectiveness of judicial system under the "harm principle" while linked with premeditation. 4. According to Kadish, why do we still have the “harm doctrine”?
Society has an ever-changing attitude with a hopefully even slower change on morals and values when compared with philosophy. The American people though mislead are perhaps the reason for mainstream awareness. Kadish will further assert that the law is merely a reflection of the society's ability to justify. Mainstream society, culture, religion, and popular vote shape persecution and ratification.