Natural Ideal for Explorers

When we were discussing the case of the explorers within the last reading, I want to discuss why there were a number of those in class who were inclined to believe that these men were not guilty for the actions at hand. I understand this rational of being in a position of no social order; however, these men were planning on re-entering society. It is as if they went on a vacation that had no restrictions on survival. That mindset allows me to believe that anything illegal is actually legal within the right circumstances and settings. How can this ideal be just or fair?

Josh brought up an excellent example in class in regards to speeding outside the country. Is there no legal stature that allows us to enforce any law outside of our jurisdiction? I could be rambling, but I believe that the basis many of us look at to be the foundation of this not guilty verdict can actually be a means of no order as we see it. People can just do their dirty work outside of society and re-enter as they please. To me that is a problem. This ideal of nature can only be permitted so much. There has to be a line drawn somewhere.

My thoughts about the Speluncean explorers

In the case of the Speluncean explorers I would argue that they should have received a guilty sentence, however the terms of their punishment should be light given the circumstances. I say this because the law should be upheld regardless but it must also consider the moral and even logical aspects of the situation. It is important to bear in mind that these people were disconnected from society for weeks and with no real help from the outside world and as a result, they were forced to make a decision. I would not say that I believe removing individuals from society should remove them from the consequences of the law, but in their predicament, over time law is not the reason for behavior rather it is nature or basic instinct. Any judge should realize that in a depleted physical state people are not always capable of following something as abstract as law when their very survival lies in the balance. Even though what they did was wrong it lead to a greater good. By killing these men it would nullify the deaths of everyone else that died to save them… If I were the wife of a man that died in the rescue party I would be more upset at the ultimate verdict which would mean that my husband’s death was in vain.

Overall, if I had to side with any of the five judges it would be with Chief Justice Truepenny. This statement best describes his opinion:

"I think we may therefore assume that some form of clemency will be extended to the defendants. If this is done then justice will be accomplished without impairing either the letter or spirit of the statues and without offering any encouragement for the disregard of the law."

I agree with this and I think a fair verdict will be one that sustains the positive law without disregarding natural law. By doing both the statue won’t be compromised and anarchy will be less likely to develop.

regina v. dudley and stevens

The case of the Speluncean Explorers closely resembles a case decided in 1884 which some of you may be familiar with, Regina v. Dudley and Stevens. Thomas Dudley, Edward Stevens, a man known as Brooks and a boy, Richard Parker, were cast away in a storm on an English yacht. The yacht was badly damaged and the men had only two cans of turnips and a limited supply of fresh water for their survival. They caught a small turtle on the fourth day, which was completely consumed by the twelfth day and had no luck catching any other form of nourishment. After twenty days, Dudley and Parker, without the consent of Brooks, decided to kill and eat Parker, who was very ill and probably wouldn’t have made it much longer. After feeding on Parker for four days, help arrived and the three men were alive but in very poor condition. It is thought that without killing Parker, none of the men would have survived. However, after returning to land, Dudley and Stevens were arrested and brought to trial. The court held that the defendants were in fact guilty of murder based on the idea:
“Where a private person, acting on his own judgment, takes the life of another, he is guilty of murder, unless his act can be justified by self-defense.”
The court struck down the defense’s argument of self-defense because in order for self-defense to be an option, the defendants must be in imminent danger of an attacker (in this case Parker). However, Parker was entirely too weak and unable to offer any resistance to the men. I’m wondering how everyone feels about this case, if it is any different from the explorers and if you agree with the guilty verdict.

The Donner Party

The Donner Party was a group of American emigrants, headed towards California. They were snowbound in the Sierra Nevada in the winter of 1846–1847. Like the Speluncean Explorers, some of them resorted to cannibalism. There were about 33 people in nine wagons when they departed from Illinois in 1846. When a blizzard trapped them, the emigrants slaughtered their remaining oxen, but there was not enough meat to feed so many for long. In mid-December, fifteen of the trapped emigrants set out on a 100 mile trip to seek help. This group consisted of 10 men and five women. When one man gave out and had to be left behind, the others continued, but soon became lost and ran out of food. Caught without shelter in a horrible storm, four of the party died. The survivors resorted to cannibalism, then continued on their journey; three more died and were also cannibalized. Close to death, the seven survivors—two men and all five of the women—finally reached safety on the western side of the mountains on January 18, 1847.

Californians rallied to save the Donner Party and equipped a total of four rescue parties, or "reliefs." When the First Relief arrived, 14 emigrants had died at the camps and the rest were extremely weak. Most had been surviving on boiled ox hide.

When the Second Relief arrived a week later, they found that there had been no more deaths, but some of the 31 emigrants left behind at the camps had begun to eat the dead. The Second Relief took 17 emigrants with them, leaving 14 alive at the camps. When the Third Relief arrived later in March, they found nine left. They rescued four children, but had to leave five people behind. By the time the Fourth Relief reached the camps on April 17, only one man was left alive.

The justified their actions by eating each other family's dead, so they didn't have to eat their own.

Although no one was intentionally murdered (that we know of) there are similar circumstances to the Speluncean Explorers. It just so happened that there was a lot more people in the Donner party and they had more time to die. The Donner party was also traveling with animals that they slaughtered before resorting to canibalism. The Speluncean Explorers didn;t have that luxary.

The Speluncean Explorers and Normative Criminal Law

In his essay "The Case of the Speluncean Explorers" Fuller analyzes several theories of law by having five fictitious judges give opinions on a criminal case. The bulk of the judges' opinions deal with philosophies of law in quite abstract ways. For example, only a fraction of Justice Keen's opinion deals with the case at hand; the rest of it is a broad overview of the history and implications of what he percieves as loose judicial interpretation. I, however, feel that all five opinions overlook a critical matter: normativity as it relates to criminal law.

In the Hart-Fuller debate, one of the main issues was how fidelity to law, and consequently the normative aspects of law, can be accounted for. In criminal law, especially, normativity is important. As Holmes argues, laws must be written so that the "bad man", the amoral individual, can understand how he is to act. My understanding of this line of reasoning is that a completely amoral person, when deciding whether or not to do some specific act, may consult the law to become aware of the legality of that act.

It could be argued that not all laws are normative. For example, right-giving laws may not be. But certaily criminal laws are, as shown by the normative language of N.C.S.A. 12-A:

Whoever shall willfully take the life of another shall be punished by death.

In the Speluncean Explorers case, the defendents literally consult the law: they ask on their radio of any lawyers or judges would advise them on whether or not they should eat one of their own. When no one responds, the law has failed in its normative duty. To me, the problem with handing down a guilty verdict comes from this failure of normativity.

I'd be interested to hear about other people's take on this opinion

Spelunkers

We discussed the morality of the cave divers case yesterday during class. Some people said they were guilty and some said they were not. I feel that if you are trapped in a cave with no connection to the real world, then you are in your own world. I feel that since they navigated the proper discourse about rolling the dice and the alternative options (which there really were not any) they did not commit any crime. I also think it to be audacious for the courts to even pursue such a case as one of the justices had said "they have been through an enormous amount of suffering already". Obviously the entire case was hypothetical but instances like that do occur on a variety of scales (having to pay legally after paying so much physically and emotionally)
For example, a high school teenage girl who suffers from blackout episodes (due to large amounts of stress) passes out at the wheel (from stress) on a local road and slams into a tree, she is taken to the hospital and recovers from multiple fractures and lacerations and upon discharge is arraigned for reckless driving (true story) and is sentenced to pay 8 thousand in fines.
Do you think prosecutors do their research on a person before eagerly signing warrants and the like? We talk so much about the "higher law" but how come we never see it implemented via law enforcement?

Legal Hierarchy

Last week we talked about Aquinas hierarchy of law. This idea that law has multiple levels from which it’s derived is an interesting one if thought about from a positivist perspective. In natural law there are 4 levels, according to Aquinas, Eternal law, Divine law, Natural law, and Human law. Now the question is, what levels are there as a positivist?

The purpose of law, since I am rejecting morality as a basis, is social order. At the top of my list I would put a modified form of natural law. My version of natural law would have to be based on human urges. For example, humanity will always have various passions such as love, hate, lust, pride, etc. If I spent a lot of time on this I could probably hash out 14 virtues and vices. If I wanted to follow Aquinas example I could use Aristotle’s version of virtues and vices.

So at the top level is natural law, which is the virtues and vices of humanity. From this I would derive two kinds of tangible law. First, social law, which would be law governing the vices. More simply, law that helps us control the negative side of humanity and live together peacefully. The second level would also include the contrast to social law, which would be chivalrous law. Chivalrous law would be much like divine law. It would be a way to conduct oneself in society to achieve the illustrated virtues. Much like divine law, this would not be codified. It would be understood culturally to various societies in the world.

Now the largest difference between Aquinas’ structure and mine is the final tier of law. Aquinas has human law on the bottom as the result of the top levels. In my structure there is no law as the result, instead I put social order on the bottom. The higher levels of my system culminate in the end goal. Anyway, it is interesting to interpret Aquinas structure of law through the eyes of a different legal philosophy.

P.S: this is for last week

Judge as a Legislator

I came across an article in TIME magazine that seems to hit right on the issues we are discussing in class. It spoke of the philosophies on jurisprudence that Sonia Sotomayor holds and the issue of being a realist and legislating from the bench, or being a positivist and simply applying the law. At one point it spoke of how she persistently insists on regarding her job to be simply applying the law rather than creating laws as a judge. She thinks that her fidelity to law lies in her strictly abiding by what the law says and that would mean she’s doing her job well. After reading Fuller, I feel that laws are merely the tools which have an underlying purpose which needs to be upheld and the fidelity of a judge to the law lies in how well they ensure the reason for the law’s existence, i.e. what the law seeks to accomplish, is upheld. Therefore, I feel that she wrongly believes that a judge’s job is to only rely on precedence and apply the laws because their actual job is to ensure justice, which may at times need them to act as legislators. It also seems naive to say that no judge ever acts as a legislator since their job leads them to do so very often, and if done well, it can lead to good outcomes. I feel that here the realist and natural law theory somewhat come together. In legislating from the bench, judges are using their own life experiences and other factors to uphold what they think the moral thing to do is. I think it’s a problem that publically acknowledging the fact that judges do so is not accepted; it seems okay for them to do so as long as they’re doing it well. Perhaps there should be rules which allow judges to act as legislators; so that how they do it is regulated, since they’re doing it anyways.

To be Self Evident?

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

We're all pretty well acquainted with this phrase. People have a tendency to focus on the latter portion of the Declaration of Independence's opening sentence. Nobody questions what exactly it means to be self-evident. Does it imply the existence of innate knowledge? Does something become self evident after education?

Aquinas defines two criteria in order for something to be self evident. First, it must be self evident by definition. Second, we must be cognizant of the definition. For example, according to Aquinas being a man implies rationality (this satisfies the 'by definition' standard), but one who does not know the definition of man would be unable to link the two concepts. Aquinas goes on to distinguish between universal self-evidence and narrow self evidence. Some axioms and propositions are only self evident to the wise. Aquinas justify the existence of several precepts of natural law using his definition of restrictive self evidence.

In my opinion, Aquinas' belief in self-evidence can be almost be restated by saying "So and so is apparent to me simply because I'm smarter than you or have more knowledge on the subject". His argument is pretty flimsy- using his rationale it's possible to support any claim by citing self evidence.

Crito and Socrates

“Doing evil actions against the evil,
as the many say, is just or not just?”

In Plato’s Crito, which can be found here, involves a conversation between Socrates and Crito. I don’t expect anyone to read the entire thing, so I will summarize it. The occasion for the conversation is that Crito, after Socrates has been imprisoned for impiety and corruption of the youth, visits Socrates in his cell. Crito furious, due to Socrates imprisonment, proposes that he escape from prison. Crito gives a few reason to why he feels the Socrates should escape, among these are reasons of reputation and a teacher’s obligation to their students. However, Socrates argues against these reasons, claiming that they are irrational, only “thoughtless men” worry about such things. Crito feels that Socrates has been unjustly punished and has the right to escape from prison. The two then get into a debate about what justice is and how one can achieve justice. Socrates says “resisting evil by any means other than persuasion is evil.” He makes the claim that by participating in an act of injustice to cure injustice is wrong, and that he has no right to do so. He believes that it is his duty to accept his punishment, and that destroying law is unjust. The point of the Crito is to establish the role of the individual in a state, as well as define justice and how an individual can work with justice. But, is Socrates right? Should one remain just when dealing with injustice, or are there times when people need to break laws to correct injustice, and is that morally right?

I believe that it is ones duty to correct an injustice, but one shouldn’t attempt to break laws in doing so. One should first attempt to use the system of law by which they abide to change law. If that is not possible or not available then one should attempt to publicize their injustice legally. Only when it becomes impossible to follow law to correct an injustice must one slowly break laws to correct the injustice. Of course they should attempt to do it peacefully, without violence.

However, does an individual have the right or ability to interpret justice/injustice and act upon it? Are humans capable of such a thing as individuals, or is it only when majorities or groups rationalize justice/injustice as a whole can the group or majority act in favor or against what has been applied to them?

Henry Gates

In response to Mike’s post about Henry Gates and his question of ‘is police bias an increasing predicament that needs more focus?’ After taking several classes regarding this subject I do feel that racial profiling is a major problem in our country. However, the incident involving Henry Gates is not one of these cases. Sgt. Crowley received a call about a burglary in progress, was given a description of the individuals and arrived to find one of the individuals inside the home. He then ordered the individual (Gates) to come outside and provide him with identification at which time Gates began to argue that he was a victim of racial profiling at this point. The argument continued to the point where Sgt. Crowley issued a summary citation for disorderly conduct. Although Gates’ actions did fall under the offense of disorderly conduct, given the circumstances Sgt. Crowley probably would have been better off not issuing the citation (which was later dropped). With regard to the racial profiling aspect, I do not believe the police did anything wrong in this instance. Race was used purely as a descriptor, not a predictor which is how police should view any possible crime involving race.

Letter of Moral Law

I know we were talking about how technology affects law a few class periods ago, but I came upon an interesting case. Apparently there are cases of "zombie" computers. This is where a virus or worm is introduced to your computer that allows someone to remotely access your computer. In this particular case, the infected computer was holding and distributing child pornography. The computer in question was that of a 16 year old Arizona boy. The cops set up a raid of the boy's parent's house where he resided and forced his mother and sister out of the house. His father was asleep and woken up by gunpoint. The charges of holding one image of child porn on your computer carried up to a 10 year sentence. During the investigation the police refused the parents request to have the hard drive inspected to see if it was a zombie until the state Supreme Court stepped in. Once the hard drive was examined it was discovered that it had many infections. One of the more interesting points is that the inspector of the hard drive couldn't tell who had infected the computer or who had put the pornographic files on to the computer, either the hacker or the actual user. The boy eventually was offered a plea deal, one of many, where he pleaded guilty to "three 'class 6 undesignated offenses.'" This carried a probation period and the boy was classified as a sex offender, this was later dropped after 20/20 investigated the case.
Child Pornography laws are moral laws, or at least that's how I see them. This case shows that moral laws should be scrutinized, if allowed at all. The law stated that since the boy had porn files on his computer he should be imprisoned.
I was wondering what anyone else thought about this case.
(All information was found on a FOX News post, written by Wendy McElroy.)
http://www.foxnews.com/story/0,2933,244009,00.html

Fidelity To The Law

The other day in class Josh brought up the concept of fidelity to the law. In our relationship to the law he presented the idea that we as law abiding citizens are following the law due to our faithfulness to each other. Like in any other relationship, we aren’t tied to the concept, or in this case, the written law but to the other party. This leads me to investigate why do people follow the law? Though that may be the one reason, it seems more likely that people follow the law for the fear of the consequences of breaking it. Similar to John Austin’s “command theory of law”, our fidelity to law is not really contingent on our relationship with each other but because it’s not in our best interest and the possible repercussions. Not to say that without sanctions and punishment there would be anarchy but, we would be less of a reason to follow the law. On a smaller scale I jaywalk all the time, it technically illegal but who’s really going to punish me? It’s an inconvenience to those driving, I know that and I just dismiss it even thinking to myself when I’m driving I can’t stand those people that dote same thing. Using that same logic, I can’t say I would kill people, but I think if they could get away with it, a few of those people in the cars would hit me.

...I Know It When I See It

One of the best examples, I feel, of the conflict between what the law is and what it ought to be comes from the realm of obscenity laws. For whatever reason, obscenity cases tend to bring out strong opinions. It often seems that a crucial aspect of obscenity laws is defining what constitutes the label of "obscene". To me, it seems like opinions can be drawn along the same ideological lines as in the Hart-Fuller debate.

In particular, I'd like to discuss the case of Jacobellis v. Ohio (378 U.S. 184 (1964)). So divisive was this case that six of the nine Justices wrote their own opinion. The opinions seemed to be (roughly) divided along positivist / natural law lines. The positivist side can be best represented by Justice Hugo Black, who thought that the First Amendment allowed for no censorship whatsoever. The natural law theorist side may be best represented by Justice Potter Stewart. Stewart's opinions on the matter can be summarized by the quote:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

It seems to me that Justice Black's opinion comes from a strict reading of what the law plainly is. Justice Stewart's opinion, by suggesting that defining the threshold of obscenity might be impossible, is implying that the threshold is defined by the individual.

Do you guys think it is possible to define obscenity? Or will it always be something that must be regarded in a more holistic, natural law-kind-of way?

Separation of Morals and Law

Since we started studying legal positivism we've been talking a lot about the idea that laws should be separate from morals, and vice verse. Personally I don't really understand how we can arrive at this idea that laws and morals are separate. If you ask me, the laws themselves are based upon a set of universal morals amongst all of the citizens in the society. I mean, for the most part we all agree on the laws that have been laid upon us, and if we don't as a society we have the ability to change them. If we look at murder for instance, I think we can all agree that it's morally wrong, which is why we designed laws to protect us from it. In a nutshell that's how I feel about the topic; but I would like to hear some other opinions on this, so I suppose my question would be: Isn't law ultimately based upon our moral values as a people, and is thus inherently tied to morals now?

Retroactive Warrants

In this country, you are innocent until proven guilty. The burden of proof lies with the prosecution as they are the party seeking redress. However, the Bush administration has decided to do away with Constitutional Rights and adapt a new amendment to the Foreign Intelligence Surveillance Act (FISA). This allowed the Bush administration and all law enforcement agencies to intercept any form of communication whether its' international to domestic or domestic to domestic and use any information obtained to prosecute any members of the accused party. It is unanimously agreed upon that if those measures were to be used to find terrorists than the amendment is worthy of legality. However, in an attempt to cut corners, the DEA is now using this new found freedom to intercept text messages of U.S. citizens without the proper warrants and/or wire-tap authorizations to seek out small time controlled substance deals; especially in college towns.
You may or may not have read about the San Diego State University drug bust where 75 students were arrested on "multi-million" dollar distribution charges to wit: a dry erase board with a ledger of blanaces of known distributors. What you probably didn't read is the docket from the pre-liminary trial which says the way these students were being watched wasn't approved by any magistrate or judge in the effected Federal Circuit. They were being watched through Bush's "anti-terrorist surveillance act" but these students aren't terrorists, they are students who used their entreprenureal skills to provide entertainment to fellow students, keep in mind Marijuana is not illegal in California and a majority of the students had their respective prescription cards on them during the arrest. On a more local note, 4 PSU students who I shall not re-name out of respect were recently indicted on State conspiracy charges for attempting to distribute "1.2 million dollars of Marijuana". In this case, there was no physical evidence no money, no drugs, just an "idea" that these students wanted to make some money by selling weed. The police intercepted a text message between one student and a NY State resident which hinted towards the idea. The police used the power of the press, and their warrantless telecommunications intercept, to supress the students into state sanctioned felony charges.

I don't mean to rant on about i have absolutely zero respect for the way small town college cops go about doing their job, but of the 100 + centre county cases i have studied that involve drug dealing, possession, or the like not one case was solved by doing actual police work. On every page of each docket i have read there were always corners being cut, like using "i heard the activitation of a lighter" as probable cuase to enter a multiple room residence to find some kid smoking a bowl in his basement, not off of a whim but becuase the police have gotten tips that this kid is a stoner and needed any lame excuse to bust him becuase instead of solving crimes like who keeps breaking into the downtown homes and stealing xbox's, playstation, money, tvs, jewlery, and CARS the police would rather bust the kid who sits in the comfort of his home and smokes an innocent amount of cannibis.

The question i pose to the class is, do you think there should be some sort of public hearing on what mandates the police department should follow? As the citizens they claim to protect, should we have a say on what is more important for the police to worry about instead of them deciding it's easier to bust a future doctor who smokes a little herb instead of the deadbeat who goes around downtown homes and robs 1000's of dollars a week (this is an on-going investigation for about 2 years with zero leads and zero progress by the "world class" state college police dept)?

Lochner v. NY

This week the case of Lochner v New York was mentioned in class, this was a landmark case for the Supreme Court regarding contract liberty. The case was about limiting the number of hours a baker could work and wanting to work sixty hours in a week. Essentially, the problem was determining whether law should determine how long one can or is allowed to work in a given week, and if someone wanted to baking for sixty hours a week than why shouldn't be allowed to? The Supreme Court upheld the labor regulations and stated that the New York law was not a restriction of the fourteenth amendment. I distinguished that this was brought up during the Hart discussion because of his focus on content and tort law. In discussing the differences in which laws are moral or not and whether or not morality should be applied to laws and such legal decision making. Discussing Lochner v New York, showed now real moral grounds for why a law should restrict the number of hours a baker can work, simply it was regulatory for safety purposes. Furthermore, we began to discuss which laws are put into place for a societal purpose or just simply for more functional reasons. Parking laws and permits are laws that do not have any functional basis and do not apply to established precedent. I feel like there is no rational basis for these types of law, aside from just being functionally regulatory, they seem to not have a strong basis.

The Law vs Morality

As we discussed in class H. L. A. Heart made the distinction that there needed to be both a separation between law and morality. Hart says that law is what is and morality is thought of as what the law should be. This is because he says that political societies cannot exist when laws will end up affecting a specific group. Here in lies the problem, if a society relies on laws alone, there may end up being a group that is specifically affected by this. However, on the other hand if political communities rely on morality alone, there will end up being a conflict between different political societies because different groups will end up having different beliefs when it comes to what is just and what is not. A good example of this would that in American culture we know and believe that at no time is it ever right for an individual to take the life of another except in self defense. However, in some Middle Eastern cultures it is alright for a family member to take the life of an individual that may have insulted family and in order to reclaim the honor for your family, you need to take that individual’s life.

One case that was brought before the Supreme Court of the United States was Smith vs US. Smith was a member of a Native American Church that used the drug peyote in their religious ceremonies however the issue he was also a drug counselor. Because of his use of peyote he was fired and attempted to collect unemployment benefits from the state of Oregon but was denied because state statute stated no individual would be able to collect benefits if let go for any type of drug usage. This decision would end up going before the states Supreme Court that would end up ruling in favor and up holding that States drug use regulation. The case would also end up going before the Supreme Court of the United States who ruled that the state was justified in denying Smith compensation even though the drug usage was condoned by his religion. The question that I now ask is that if there is a separation between law and morality, which one we are supposed to end up choosing if in either case there is going to be a party affected by the outcome?

Henry Gates Jr.

I am not sure if people were aware of the incident that occurred in Cambridge, Massachusetts. A prominent black Harvard professor (Henry Gates Jr.) was arrested by a police officer for breaking into his own home. The disorderly conduct charges were dropped, but it starts to make me think that racial profiling may go beyond just traffic tickets and citations. In class every day we address the bias of Supreme Court justices and what not, but what about the judgments of our law enforcement. There is a load of bias within those judgments they make every day. Ultimately, these decisions put our public within the criminal justice system, which can affect the rest of their lives. I understand the notion of bias when focusing on the Supreme Court because they set the merit for the rest of our court systems. However, I believe this problem contains the same magnitude. If police officers use their discretion for the means of personal bias or prejudices, it will set a precedent for partiality in standard arrests. It is a growing problem that does not seem to have a cover over it. Judges do not link themselves to bias whatsoever. They try their best to avoid the act as well as the mindset. Police officers on the other hand make public of their bias. Videos have been documented regarding profiling and bias. Numbers and statistics also display a strong presence of these actions. The question I like to pose…Is law enforcement bias an increasing predicament that we need to focus more on? It is a form of judgment isn’t it?

"In God we trust"

The picture Josh made in class, showing how the different types of law encompass one another got me thinking about how the law is enacted today. More specifically, I thought about the phrase "In God we trust" printed on all U.S. money. Some versions of the motto came about after the Civil War in the United States and as a result of an increase in religiosity they wanted to give recognition to God. Initially this phrase was placed on all U.S. coins through an Act of Congress on January 18, 1837.However not until July 30, 1956 when Congress passed a law, was “In God we trust” made a national motto. This later led to it being printed on paper money as well.

This whole situation seemed to be an example of how human law was influenced by divine law. It shows that positive law today is only partial and perhaps it was made whole by referencing other types of law. This then brought me to question what our monetary portrayal says about what Americans believe dictate the law? …and is it just a motto or phrase or does it imply something deeper? I think that by printing this on money the United States is falling in line with natural law theorist by acknowledging a higher power in their system of human law. If this is true it may have set the tone for what laws came thereafter. Thus divine law and morality have become the basis upon which positive law is made. On the other hand, "in God we trust" could very well be just a motto and perhaps over time we have not so much trusted God (divine law) as a part of law, but trusted the morals of majority.

Defeat of a New Concealed Amendment

The second amendment of the U.S. Constitution states:
“A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

In a 58-39 vote, Republicans fell 2 votes short of passing an amendment that would have allowed gun owners to carry their weapons across state lines without regard for stricter laws in many jurisdictions, giving preference to states with looser standards. Sen. John Thune (R-S.D.) , sponsor of the amendment, is considered the most far reaching federal effort ever proposed to expand laws to allow weapons ownership.

Offered as an amendment to the annual defense authorization bill, it would allow people to carry concealed firearms across state lines, provided they "have a valid permit or if, under their state of residence ... are entitled to do so." This means that someone who had a concealed-carry permit for his gun in a state like Vermont -- with some of the loosest gun-control laws in the nation -- could cross over into other states with their guns and not be found guilty of violating those states' tighter gun laws."This carefully tailored amendment will ensure that a state's border is not a limit to an individual's fundamental right and will allow law-abiding individuals to travel without complication throughout the 48 states that already permit some form of conceal and carry," Thune said during Wednesdays' sometimes heated debate.

Gun control is an important and debatable issue in America today, and has been over the past decades. With increases in gun-related crime, many blame the gun control laws instead of the offender or corrupt communities. This amendment to the defense authorization bill would have supported our founding fathers’ initial intentions. If the regulations for permits became stricter and background checks for purchasing a gun were more invasive, then it would be harder to obtain a gun. People should be allowed to own a firearms if they wish, but obtaining one should be the problem. It’s the person who holds the gun that is dangerous, not necessarily the gun itself. We as American citizens have the right to bear arms and Thune was merely trying to embrace this right.

Do you believe that this amendment should have been passed? Do the restrictions on gun-control confirm the entire American society’s moral beliefs?

To be bias, or not to be bias?

"The Pirate Bay is a Swedish website that indexes and tracks BitTorrent files. It bills itself as "the world's largest BitTorrent tracker"^[1] and is ranked as the 106th most popular website by Alexa Internet.^[2] Initially established in November 2003 by the Swedish anti-copyright organization Piratbyrån (The Piracy Bureau), it had been operating as a separate organization since October 2004. The website is currently run by Gottfrid Svartholm (anakata) and Fredrik Neij (TiAMO).

On 31 May 2006, the website's servers, located in Stockholm, were raided by Swedish police, causing it to go offline for three days.^[3] According to the Los Angeles Times, The Pirate Bay is "one of the world's largest facilitators of illegal downloading", and "the most visible member of a burgeoning international anti-copyright—or pro-piracy—movement".^[4] The Pirate Bay has about 3,600,000 registered users, although registration is not necessary to download non-pornographic torrents.^[5]" [Wikipedia]

The judge of the Pirate Bay indecent was Tomas Norström’s. His objectivity was questioned by defense lawyers because of his support for both national and international pro-copyright lobby groups. Although many people believe that he was bias, Norström disagrees, “My view has been that these activities do not constitute a conflict of interest.” Questions of a re-trial quickly emerged. The District Court of Stockholm confronted the Appeal Court, saying they didn't believe that Norström was biased. The prosecution said the 4 defendants were "assisting in making copyright content available" and asked for millions in retributions.

Kerstin Sjoden reported.

"A win-win situation. That’s what author Anders Rydell, who wrote a book about the Swedish piracy movement, calls the pending verdict in The Pirate Bay trial, due in on Friday. Four men associated with the defiant BitTorrent tracking site are on trial for contributory copyright infringement.

If they win, it will be a sign that file sharing is not illegal. If they lose, they’ll be martyrs."

The thing is...i feel personal experiences, beliefs, and interests are almost always going to effect a judges ruling, even if it is subconscious. I can't imagine feeling very strongly about something and ruling against it in a completely fair manner. Say you are a judge and you are a father to a young girl. In a trial against a deranged pedophile, can you imagine letting them walk your streets because there was not "enough" evidence because the bastard was smart about it? Personally, i could never be a judge, because i care to much about people and would get too involved.

They were found guilty and ruled $3,620,000 to pay in reparation without a re-trail.

"On 30 June 2009, Swedish advertising company Global Gaming Factory X AB announced its intention to buy the site for 7.8 million USD. The transaction is planned to take place in August 2009. The Pirate Bay founders stated that the profits from the sale would be placed in an offshore account where it would be used to fund projects pertaining to 'freedom of speech, freedom of information and the openness of the internet'."

So tell me... is there such thing as an unbiased opinion? Is it possible for judges to completely put aside their beliefs to determine the ruling of a case? Could you do it?

Eudaimonia

During the past two days, one of the buzz words in class has been eudaimonia. What is eudaimonia? If you wanted to be concise, you would define eudaimonia as happiness, but the concept embodies more than mere joy.

Aristotle defined the concept as the highest possible level of happiness. Achieving eudaimonia, according to Aristotle, is in some sense a human being's purpose, and is also unique to human beings. Human beings are the only creatures on the planet capable of rational thought, a prerequisite of eudaimonia. Taking note of these distinctions, Aristotle concludes that only by continually guiding ourselves using reason,we can achieve eudaimonia.

We also learned that Aristotle believed there was a natural order. In Greek society, some people were born to be leaders, other followers. Some were born to be generals, other soldiers. And some were fated to be slaves or live in poverty from birth.

Aristotle advocates the use of reason strongly, claiming it is the path to true pleasure- and yet one must wonder- how could a Greek slave- someone who spent every waking moment of their life suffering, laboring for someone else, discover happiness simply through thought?

Perhaps my attitude is naive- but I think if you're looking for happiness just spontaneously do things you enjoy: whether it's playing sports, video games, or going to the movies with friends. Short term, brief happiness may not be as meaningful, but it is attainable for everyone, which is more than can be said for eudaimonia. What is happiness to you?

Henry Louis Gates's Arrest and the Meaning of Law

The recent arrest of Harvard professor Henry Louis Gates in his home on charges of disorderly conduct seems to offer an instructive case of the law's indeterminacy, the rights of citizens to resist unjust imprisonment and the command theory of law.

I'm throwing this out there as a topic of discussion that cuts across many theories of law in the hopes that we can generate several posts based on the same event. My thinking is that this would help illustrate the differences between natural law, positivism and realism generally. For instance,

• Is this a case where the gap between the letter of the law (positive law) and its application to specific facts involving race in America come into conflict resulting in an arbitrary use of authority, as a realist might claim?
• Is this a case, where the authority granted by positive law seems to violate demands of justice, specifically one's ability to resist an unjust law, as a natural law theorist might claim?
• Or finally, is this simply a case of the law needing to function without moral sanction in order to maintain the integrity of legal order, as a positivist might claim?

Those are simply a cursory set of possibilities. I hope some of you will respond to, expand or offer new interpretations of this case, with a view to testing out some of the various theories of law we've begun studying in class so far. Also, I'm interested in hearing how one's perspective on the case might change depending on whether we take up the perspective of law enforcement, lawyers, judges, legislators or even the view of concerned citizens.

Personal Experience

Following the recent events revolving around the Sotomayor hearings there has been one thing in particular that has been one thing in particular that has stuck out for me. Sotomayor has on several occasions has been quoted saying that she believes that it is the judges sole responsibility to enforce the laws. On another occasion she has also stated that “life experience have to influence you”. What I find confusing is that if an individual is supposed to let their experiences influence them, how they are going to be able to remain unbiased in a court of law. I do believe that it is the experiences that an individual goes is one of the major things that helps shape who that individual will become. However, as a judge you have to be able to check these types of things at the door when you go to work every day, if not an individual will not be receiving a fair trial which is promised to these individuals when they enter the system because of such things like biases. While it is important for an individual to know such things as where they have come from and remember the things that they have been through, in the criminal justice system today it is supposed to be the judge who is supposed to rule the laws that are on the books and by precedence. There is no room for personal experiences in a court of law.

The Case of Terri Schiavo

I am sure that most of you are familiar with the case of Terri Schiavo. In 1990 Terri Schiavo collapsed in the hallway of her apartment. When the paramedics arrived they found her face-down and unconscious. She was also not breathing and had no pulse. She remained in a coma for two and a half months and then emerged into a vegetative state and was being fed by a feeding tube. Terri's husband and parents disagreed about whether or not to keep Terri alive on the feeding tube or to let her die because there was no hope for her to get better. In 1998 Terri's husband filed a petition to remove Schiavo's feeding tube, which her parents opposed. Since Terri didn't have a living will,a trial was held in 2000 to determine what her wishes would have been regarding life-prolonging procedures. Eighteen witnesses gave testimonies regarding her medical conditions and what they thought Terri would have wanted. Terri's husband claimed that she would not have wanted to be kept on a machine when her chances or recovering were slim. Terri's parents on the other hand claimed that "Terri was a devout Roman Catholic who would not wish to violate the Church's teachings on euthanasia by refusing nutrition and hydration." After many hearings, petitions, and the passing of "Terri's law", which all tried to give her parents more say in the matter, Terri was taken off the feeding tube. She died after 14 days of dehydration.

The case of Terri Schiavo kind of reminded me of when we were talking in class about which is worse, killing your spouse or killing your parents. Not in the sense of murder but about which relationship is stronger, the relationship between spouses or the relationship between the parents and a child. So my question is this, do you think the judge ruling that her husband had more say was fair or do you think her parents should of had more say in the matter?

Bivens v. Six Unknown Named Agents

Aside from having one of the coolest Supreme Court case names, Bivens v. Six Unknown Named Agents (403 U.S. 388 (1971)) explores some interesting issues about the preferential position of certain constitutional laws.

Background
DEA agents arrested and searched the home of Bivens without a warrant. He was later released without being charged for a crime. Bivens sued for violation of his Fourth Amendment right against unreasonable search and seizure. As Bivens was not being charged with any crime, the exlusionary rule did not apply. Bivens' case was based solely on the idea that violation of a right by the government is grounds for legal redress.

The court found that there is an implied cause of action for violation of a constitutional right.

Implied Cause of Action
Under United States law, a cause of action is a set of circumstances which allows an individual to seek legal redress in a court of law. Typically, positive law (written law and precedent) specify the criteria which allow an individual to bring forth a lawsuit. That is, causes of action are enumerated in positive law. A implied cause of action, then, is a cause of action not specified in positive law. Wikipedia states that implied causes of action are:

[Judicial determinations] that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law.

The Analysis
Bivens had at least two causes of action in the existing positive law. He could have sued for damages, or filed an injunction. To me, then, the most interesting aspect of this decision is the assertion of an implied cause of action. This suggests the Supreme Court found the existing two causes of action, and thus the two existing legal remedies, somehow deficient in this particular case. Justice Harlan's reasoning for this third, implied, cause of action was that Tort law should not be the remedy for violation of a Constitutional right. Phrased another way, the Supreme Court decided a Constitutional right is 'too special' to be remedied with common Tort law.

Justice Harlan himself wrote that:

[T]he question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies . . . [In choosing whether to remand the case to Federal tort law] we implicitly express a value judgment on the comparative importance of classes of legally protected interests.

Legal Positivism
In my opinion, the Court is following a very Dworkin-ian philosophy. As suggested by Justice Harlan's opinion, the Bill of Rights serves the role of both a law and a principle. Thus care must be taken not to cheapen such an important principle by associating it with 'pedestrian' Tort laws. To the Court, the "implicit value judgment" of using the remedy is of utmost concern. All this is in direct conflict with the ideas of legal positivism. Legal positivism does not allow judgments about the relative importance of different laws (unless, of course, there was a law saying that certain laws are more important than others). Of course, a legal realist could say that the Court's decision was merely a reflection of the tendency of Supreme Court Justices to hold strong emotional associations with what they feel are particularly important laws.

So what do you guys think? Is it the special position of the Bill of Rights, the sentimentality of a bunch of old judges, or something else entirely?

Superfluous opinions on the theories

I thoroughly advocate the natural law theory because I think that in talking about the divine law, and about upholding morality and the right thing to do, it aims at what’s best for society, and at attaining happiness in the community. The complexity in determining what these things are, and our ever-changing views on what’s right makes it difficult to hold strictly to this theory, but it still looks at the sources which would be reasonably best for society. By looking at only what’s accessible to the human mind, the positivists just make the work easier; but, even in the case of natural law theorists one’s not looking at anything beyond the human mind’s grasp (that’s not possible!). Even if we look at social conventions to formulate laws, those conventions are laid out for the society to function better and therefore they probably carry some moral component in them. As for the realists, I think their work is very crucial because it gives an understanding of what actually happens when judges are deciding cases. Irrespective of whether it’s right or wrong, if that’s how it happens, then developing further on this reality would help bring the legal system to the way one thinks it should be. If judges have to keep being unjust themselves by deciding cases depending upon sociological factors and find laws to cover up their judgements, then accepting this reality and learning how it can be controlled or just knowing that other factors influence a judge would give an understanding of what credibility a judge’s decision should really have.

Is There Such Thing as a Conservative Liberal?

To the left of the Supreme Court are the liberals. The liberals believe in governmental action to achieve equal opportunity and equality for all. The state’s duty is to alleviate social ills and to protect civil liberties and individual and human rights. They believe the role of the government should be to guarantee that no one is in need. Believe that people are basically good. Liberal policies generally emphasize the need for the government to solve people's problems.*

Democratic President Obama’s nominee, Judge Sonia Sotomayor, raised questions of her joining the Supreme Court after her disappointing responses, or lack of, in the hearings of her election. Sotomayor seemed to have distanced herself from the public and disillusion legal thinkers. She only raised question to a gender and ethnic bias, according to the GOP. With twenty eight years of judicial experience, Sotomayor (D) lacked response to issues, important to the left, of abortion, gun control and same sex marriage, as well as civil rights matters.

I don’t think that the Supreme Court is ready to have a member who doesn’t show her moral or liberal values. With lack of confrontation of her views and legal stand point she is questioning the Obama administration. Even though the Supreme Court would benefit from having another liberal body, since it is currently leaning to the right (conservative side), I don’t think they should admit someone so unspoken.

Sources: Washington post & Student news daily

The lawmakers of today

After spending a great deal of our class discussion talking about the way judges decide cases, what drives them to make the decisions they make and how laws are passed in the legislature I would just like to bring to light the recently decided case involving Vincent Fumo. For those who are unaware, Vincent Fumo was one of the most powerful state senators here in Pennsylvania for over 30 years. Fumo, who was responsible for making laws and representing us as citizens of this state, was instead misappropriating millions of dollars to benefit his lavish lifestyle. Fumo was sentenced this week on 137 counts of corruption and counts of obstruction of justice for trying to delete emails and other conversations to cover up his guilt. He was sentenced to only 55 months in prison. If a man like this, that we have been trusting for so many years is capable of stealing such large amounts of money from us, it makes you wonder about the motives of so many other political figures in all realms of government.

Enforcing the Law

This is going to be a very short post, but I just wanted to present an idea to the class and hopefully get some feedback.
In class we spoke about the various ways to validate the law or how to make sure the citizens follow the law, and one of the ideas that we commonly refer to is the presence of punishment upon committing a crime as a way to keep the people "in line". But beyond that we didn't talk that much about this idea.
During class I simply thought that the purpose punishing criminals to ensure that they won't perform whatever they did again, and to say to the rest of society "you see what happens when you do this". But the more and more I thought about this idea my feelings on it changed. I now believe that the reason we punish our criminals has little to do with the actual criminal, but is more of a way to show appreciation or to give a kind of reward to the rest of the people. To word it better it's almost like saying you didn't kill anyone so you don't have to go to prison; and then the citizens think we'll I haven't committed a crime so that makes me a good person and a good citizen. I feel as though that is the reason why we're inclined to follow the law, not necessarily the fear, but the idea that we're good people for not ending up in the back of police car.
So if anyone has any opinions on this idea I would like to see them.

Judge Sotomayor and Legal Realism

Link: http://online.wsj.com/article/SB124346735555660341.html

In the article Judge Sotomayor who is a legal realist, makes some valid points. She advocates that the law is not static and predictable but is to be addressed, reformed, and tailored to the case presented. I’m not necessarily a supporter of legal realism, but I feel it is irrational to think it is not what actually happens. It is nearly impossible and subconsciously that one’s background, judge or otherwise, influences the decisions that one makes. Judges are human and they use their personal experience in conjunction with the law to arrive at a decision. Isn’t law in essence just a guideline, for how we should run our society, and as society evolves shouldn’t our laws as well as how they’re interpreted? Where I do differ from legal realism is in the inability to properly gage or control to what extent one’s background, or biases can sway one's view. As stated in the article, if this theory of justice were to be abused “parties in cases to get different results depending on the ethnic makeup of the court” could occur, which ultimately undermine the law. Since there is no perfect system, and legal realism seems like the most realistic way to approach the law. I think in general it does more good for our overall society and legal system than hinders it.

Rational Indeterminacy: Politically Significant in 1973

I am sure that many of you are familiar with the controversial and landmark court case of Row v. Wade, 410 U.S. 113 (1973). This politically significant case still remains debatable today amongst abortion restrictions. The case was as follows:
Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall.
Conclusion: The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.

Legal realism’s rational indeterminacy played a crucial role in the deciding verdict of this case. The judge interpreted the statutes of the state of Texas. Many fight the decision of this case (which is why it is still disputed today) and yet the moral factors of this case were never clearly stated.
Do you agree with Justice Rehnquist’s decision?

The Benefits of Factors

This week, Tyler brought up an interesting question, which Joshua repeated several times. The question was approximately “Is it good/appropriate for a judge’s sociological or psychological position to have a place in law and the decision made as Legal Realists suggest?” I’m not sure if I have decided whether it’s morally appropriate or not, but I have decided that it can be beneficial in certain circumstances and situations, but detrimental in others. Take for example a fictional case where the judge’s cultural identity and values are in accordance with the defendant. This judge might and could (if the defendant was found guilty) impose a more severe punishment on the defendant to preserve these cultural values and this cultural identity, whether it is because of a sub-conscious sociological factor, or a conscious one. One might pose the question of how it’s beneficial towards reaching a uniform justice if that’s even possible, or how this is beneficial to the law. My response would be that through the preservation of cultural values and identities we preserve that cultures ideas and thoughts on law and morality. With both generations Y and Z coming into being alongside the technological and interpersonal communication advancements the world has made, many cultural values and ideas are being ignored to the point of extinction. This could lead to the loss of values such as law’s preservation, or that one should follow laws. A lawless state might not be so appealing. Basically, the point I’m trying to convey is that through these factors that affect a judge can come the preservation of certain things or the acknowledgment of certain things such as racial hatred, or ignorance, and through these things can the idea of law be preserved or altered to better accommodate for the needs and social evolution of a community.

Is morality necessary in law?

If I had to choose between the viewpoints of law we discussed in class I would lean towards the natural law theory. I think that morality should be incorporated into the law even if it is based on the individual. Although natural law can be considered the ideal as it is compared to what law should be, I think this is needed for the law to uphold the high standards it sets.

Legal realists have a much more cynical perspective because they neglect the law’s role and rely solely on the psycho-social factors or the morals of the judge. On the other hand, legal positivists's separability thesis does not acknowledge the fact that the laws do not account for everything it takes to make a decision.

Laws cannot always be the determining factors in a decision because they may not adequately address a problem. The law is made to be general so that morals can help to decide what is right not just what is legally right in specific situations. In such cases as abortion the law can only do so much. The following are laws concerning abortion:

“a woman and her doctor may freely decide to terminate a pregnancy during the first trimester, state governments can restrict abortion access after the first trimester with laws intended to protect the woman's health and abortions after fetal viability must be available if the woman's health or life are at risk; state governments can prohibit other abortions”

The problem with these statements is that they all imply a certain timeline for when an abortion is “okay”. However the law does not address when a fetus becomes a child which is a relevant moral inquisition. This is why I believe morals need to be a subset of the law so that law can fully sustain its purpose.

First MJ... Now Cronkite....Law outside of the law

As many of you probably know, Walter Cronkite died today. If you don't know him, he was the rock star of TV anchors. You may also be asking yourself what this has to do with law in any way. Well with all the celebrity deaths recently I have been thinking about unalterable laws that aren't codified in conventional ways.
When we talk about law in class, we almost explicitly refer to some body of laws that are written down. Quite often we talk within the context of the American legal system. However, lets take a step back and two steps forward. In the Orestaia we spoke of early legal systems that focused on unwritten laws, laws of nature so to speak. Then look forward to Legal Positivism. Some Positivists believe in the rule of recognition. Now take it just one more step forward and look at the normative theory, that law can gain validity through roots in social norms.

So what do these two things have in common? Well natural law and social norms are not easily defined. It seems at the basis of both the Positivist system and the Natural Law systems, there is always some fundamental belief in these unwritten laws that influence written law. Sure, morality could be considered far different from social norms (think back to Nazi Germany), but neither of these things are written down anywhere. Yet at the root of all our beliefs in law is this idea that there are underlying ideas throughout human beings that are the root cause of law.

Now think about Positivism and Natural law like this. Mainly, they are arguing over morality in law. Morality, for the sake of this discussion, is either a socially developed NORM or a divinely given rule set. Now take it even further and see that Positivists believe that law comes from somewhere, whether its social norms or something else.

What im really saying is this. Even though these two schools bicker constantly about the inclusion and necessity of morality, they do not seem to fight quite as much over the origin of law. More simply, if law is a medicine, these two schools disagree how much of each chemical should be added. However, neither really argue that at the root of those chemicals are merely protons, neutrons, and electrons.

So the next time you read about these two theories, think of it in the grand scheme. They are in a sense arguing about the depth of two very similar things in the law. And if you really are in the clouds that day, think of the unwritten laws. Bonds of friendship, death, love, blood relations, whatever comes to mind really. Each of these unwritten natural laws plays a role somewhere in our legal system. Whether those things influence morality, social norms, or something altogether different is an opinion we have to form by ourselves.

P.S: why wont this thing let me indent?

Acknowledging V. Denying

I believe Josh brought up a very vital point today within our discussion. He mentioned the difference, or lack thereof, from acknowledging a point and denying it. We compared it to the debates between Supreme Court Justice Sotomayor and Senator Jeff Sessions. How Sotomayor acknowledge and denied her Latino background as a bias towards her judgments. We posed the declaration that acknowledging and denying are kind of the same thing in regards to agreement. Do no not quote me on this, but by acknowledging bias of any kind in turn represents that you condone the act. Even acknowledging the denial as well constitutes you as condoning this act of partiality. We as a class could not come up with a steady answer to this question of whether or not this true, but I do have a question to pose to the readers.

With the recent light of harmonization between Sotomayor and the Republican Senate after Thursday morning’s questioning, do you believe that our government overlooked the potential preconceptions Sotomayor’s Latino background could provide? Jeff Sessions has made it clear that it may be present whether a denial is there or not. What does this say about law and the way our judgments will be carried out? I personally do not have a specific side on this issue, but I do concur with the idea of acknowledging a point does infer you are condoning the point. If this doesn’t make sense I apologize. I just want to know everyone’s view on this current event at hand.

The Ethics of PA Legislature (if it even exists)

It is never OK to violate persons' rights. The mere existence of the Constitution and the Declaration of Independence guarantee that. Unfortunately, when something's too good to be true, it usually is. Within the many amendments and respective clauses of our nation's laws is what politicians and law makers call "checks and balances". These have, as of the beginning of the 21st century, been manipulated to make the jobs of law enforcement and its' ancillary cohorts a lot easier.

Take for example this local precedent, in 2003 it was “legal” for Pennsylvania Police Officers to detain anyone they suspected of underage drinking solely on the officers perception of the offenders age. Which means if you look like you are 18 and you are actually 22 the cops can and will detain you without giving you a forum of discourse in addressing your innocence. A PA Superior Court later amended the decision to make it legal to only pull anyone aside and force them to take a PBT (Preliminary Breath Test – a tool used to detect the presence of alcohol but cannot give an accurate reading as to the BAC.). (Commonwealth vs. Wood) The loophole in this is that in 2001 the courts had already decided that if someone fails a PBT for a DUI investigation as an underage or the like it is grounds for a separate alcohol offense. Which through legal jargon and precedents worked its’ way into the Woods case making it legal for an officer to issue a citation for failing a test that isn’t calibrated or tested for accuracy in any means, the burden of proof just got lighter.

Furthermore, I question the morality of almost 95% of the cases that go through the Centre County DA’s office. In PA there is a quota system (it’s existence is still controversial), The Morning Call of Allentown reported, a policy, first instituted in 1982, requires officers to make at least 25 "contacts" -- issuing warnings or citations, investigating complaints or arresting suspects (Collegian 1989). We have all felt the effects of this “quota” system haven’t we? Whether it’s peeing on your own property, or drinking a beer before you are 21 (OMG!) the police enjoy harassing students because they know behind the students are parents who will probably pay the outrageous fines set by the Judge. In NYC the underage drinking citation (born and raised there and never saw one) is a 65$ violation. In PA it is upwards of $500. It’s unethical to increase the severity of a nationwide policy in certain districts just to counter-balance the financial deficit ensuing from the lack of other crimes. State College is one of the safest places in America, so instead of rewarding the citizens the “brass” decides to make an everyday citation worth half a pay check so they still get paid.

The question here, at least in State College, is how much power does law enforcement actually have when it comes to invading someone’s rights and/or privacy is there a way we can debate with local law enforcement without having to pay for an expensive attorney? How credible are the police in this town because most of the night officers are under 25 years old and 65% of all crimes around here occur after 8pm?

What Rights?

What defines a law as unjust? If the president or congress made a law that limited freedom of the press to conceal a story that would pit two large ethnic societies of the American population against each other, because it would bolster immense violence, would it be unjust? It clearly violates The Constitution, so therefore is technically unjust. However, the decision is morally just and would be put forward in order to save lives.

In the popular time period in history known as the "Red Scare," the American people's fear of communism lead to a frantic development of accusations. The rising suspicion that Communist agents were planning to extract secrets from the American government to eventually over throw it, engendered a drastic infringement of rights. Technically the people still had their rights, but now without chance of accusations that could ruin your entire life. Constitutional rights were constantly being violated and persons unjustly imprisoned. The government did what it felt was necessary to protect the American people.

When is it okay to violate a person's rights? What establishes these standards?