Clytaemestra & Injustice BLOG 2

(Keith Donnelly BLOG 2)
Clytaemestra's murder of Agamemnon, in some respect, can be viewed as a justifiable action. Consider, for a moment, the role of women in Ancient Greece: Women as citizens of society had very little, if any, prominence and social standing. With that being said, what is Clytaemestra to do with Agamemnon, her husband and king, murdering their daughter? Perhaps the only way she can seek redress is to become a vigilante and take justice into her owns hands. After all, her voice, her status as a woman, will most likely not be heard or taken seriously among the general public. However, is killing her husband the only viable option in this situation? Moreover, does one form of violence (namely, Clytaemestra killing Agamemnon) make up for another form of violence (namely, Agamemnon killing their daughter)?—I think not, though in America the punishment of death is permissible if the situation allows—this is decided by a jury, not a single individual however (e.g. Clytaemestra)
First consider to what extent the presence of injustice in the legal system permits one to take justice into their own hands. In Argos a woman such as Clytaemestra ultimately has very little say regarding the death of her daughter. In fact, even if she was a man, her voice again would not matter—who would challenge the King and successfully win? Now with this being the situation, I think a certain amount of vigilantism is acceptable, though I still do not believe killing would be the right type of justice to take. My reasoning for this view (my belief that Clytaemestra does have a right to take some form of justice) is that her daughter’s inalienable rights as a human being (if you believe inalienable rights exist) were infringed upon. It is my belief that no one deserves to die in the manner of Agamemnon’s daughter without some type of significant reason. Here, though, presents another can of worms: Was Agamemnon’s reason for killing his daughter justified? Recall Agamemnon believed by killing his daughter he was promised a safe trip across sea by the Gods. Is this an acceptable reason to kill her though? Again, this presents much controversy.
I think at the end of the day there is no right answer in this case. There are viable reasons why Agamemnon killed his daughter and there are viable reasons why Clytaemestra killed Agamemnon. I still think even if a perfect answer does not exist in this situation, even if everyone cannot agree on who is right and who is wrong, each individual studying this case can gain insight to who they are and where their morals and values lie, each person can take something from this case.

The Orestia

First of all, as a theater major, I am very excited to be discussing such a influential play such as this trilogy. As one can see, the theme of the evolution of justice appears to be a predominant topic addressed in this piece. The antagonist of the play, Agamemnon, is a power hungry individual who is consumed with hubris (pride) and selfishness. At the beginning of the trilogy, Agamemnon decides to take over Troy due to family affairs that he believes are inexcusable. Additionally, Agamemnon commits the sin of killing his daughter for personal gain. Agamemnon continues with his sins by committing adultery and indulging his own pride by walking on the purple carpet. As one can see, Agamemnon's actions are acted upon out of personal desires and emotions and he gives little thought to the possible consequences. In Greek Society, the Gods required humankind to pay for their sins. Agamemnon is forced to live with the guilt of the sins he has enacted, yet he does not realize that his pride- driven actions will lead him to his own demise. Consequently, Agamemnon sets himself up for his own downfall for taking part in the sins that destroy his family. In addition, Agamemnon triggers the other characters such as Clytaemestra to act on vengeance and murder to seek revenge.

Justification

Agamemnon's sense of justice, in my opinion, has more cons than pros. Waging a war against Troy for stealing his brothers wife is understandable. In order to get her back and fight for their family, war was the only option. Agamemnon sought out to obtain justice and to protect his family and his city. This would show his city that he was a strong warrior willing to do what it took to keep Argos and its people safe. However, during the process of justice and war, Agamemnon sacrificed his daughter for the benefit of defeating Troy. This in turn caused his own death which will lead to the demise of Argos as well. There was no benefit in the end to bringing Troy down.


Clytaemestra has a motive to see Agamemnon dead because he sacrificed their daughter for his own benefit in the war against Troy. Cassandra's motive is justifiable because Agamemnon defeated her people in war and took her from her city to a place that she didn't want to be. Aegisthus has a motive to want Agamemnon dead because his father boiled two of his brothers and fed it to their father. The Chorus was unhappy about Agamemnon fighting the war to get Helen because they believe it brought doom to their city and the demise of the family. All of the justifications make sense to me because it is all based on revenge for one's wrong doing.

Weekly Topic: Injustice and the Law

We could evaluate Clytaemestra's murder of Agamemnon as justifiable or unjustifiable for many reasons. One possible justification would go something like this: As a woman in Greek society, Clytaemestra has few if any places to seek redress when she perceives injustice, so her only remedy is to take the law into her own hands.

• What, if any, details of the plays might justify this explanation for her actions? What details might contradict this explanation?
• Does the presence of injustice within a legal system permit one to take the law into one's own hands? Why and to what extent?
• How might the legal system in Argos be changed to reduce the occurrence of vigilantism?

POST 1 Carly Mallenbaum

I agree with many of the posts: clearly both Agamemnon and Clytaemestra had motives for committing murders. Moreover, they both are confident that they did the right thing.
When Agamemnon returns from war, he's too busy thanking the gods to show any remorse for brutally killing his own daughter. In fact, the first thing he says is "I must give due greeting; they [the gods] have worked to bring me home." Agamemnon obviously doesn't feel too upset that Iphegenia is dead, and that she died in a brutal way. The Chorus says, "Her [Agamemnon's daughter] supplications and her cries of father were nothing, nor the child's lamentation to kings passioned for battle." That's harsh, Agamemnon.
Clytaemestra neither denies nor regrets killing her husband. She says, "Thus have I wrought, and I will not deny it now... this man deserved, more than deserved, such sacrament." This murder was definitely planned out and Clytaemestra seems willing to let people judge her actions. The Chorus is all "your speech is clamor of pride" because Clytaemestra feels good about what she did.

Although Clytaemestra was having an affair with Aegisthus while Agamemnon was away, I still think her motives for killing are better than Agamemnon’s. Agamemnon killed Clytaemestra’s daughter and then has the nerve to come home with some sex-slave woman. Not cool. Agamemnon should have definitely checked with his wife, the mother of his children, before killing his daughter. I know women don’t have much authority or rights during this time, but Clytaemestra and Agamemnon were married. In a marriage there are certain things you should discuss, like what type of school your daughter attends, when she should go on her first date, and whether or not she should be sacrificed so the gods give you favorable winds.

Also, it is not clear to me whether Iphegenia needed to be sacrificed for this battle. Why her? At least for the biblical Abraham, God tells him that he must sacrifice his son Isaac (even though God was just testing Abraham’s loyalty and then saves Isaac). Do the gods say to Agamemnon “you must sacrifice your daughter”? I don’t think so. If Agamemnon really wants good winds and cares so much about war, then he should be walking the plank. He should sacrifice himself for the gods. Agamemnon sucks.

Weekly Topic: Justice in Argos

Even before Agamemnon returns to Argos, we've heard many complaints about his administration. Discuss the the pros and cons of Agamemnon's sense of justice and describe the competing accounts of justice held by Clytaemestra, Cassandra, Aegisthus and the Chorus. In short, why does each have a motive for wanting to see Agamemnon dead and which justification, if any, makes sense to you?

Philosophy of Law and Legal Ethics

This is the class blog for Penn State's Fall 2009 Introduction to Philosophy of Law and Legal Ethics course. Here you will find discussion of the fundamental principles influencing contemporary legal practice and theory.

Drawing on classical readings in natural law, legal positivism and legal realism along with more contemporary movements in legal philosophy including critical legal studies, law and economics theory and feminist jurisprudence, this blog will

• highlight the implications of legal theory for topical judicial decisions and legislative developments,
  
• identify the social-political consequences of particular attitudes toward law,
• and outline the significance of legal theory to other academic disciplines and professions.

Some ground rules for blogging:

• Blog entries should be long enough to develop a line of thought without becoming long winded. 250 words should do nicely. Replies, by contrast, should address specific ideas in the original post with comments for revision, elaboration, clarification or encouragement. 50-100 words will get the job done in most cases. However, if you find that your comment encompasses more than one idea or contributes to the development of a new topic for discussion, you might simply want to start a new post that links back and refers to related posts addressing similar issues.
• You may blog and comment as often as you wish, however, no more than one post or two replies made during any one calendar week beginning on Sunday and ending on Saturday will count toward your grade. This helps ensure that the blog will have continuous activity rather than being flooded with insipid posts and pointless replies that come in at the end of the semester in order to avoid missing a deadline. The point of the blog is to encourage communication on the topics we cover in class, so it really doesn't do anyone any good to contribute posts or comments that won't be read because they were merely completed for the sake of satisfying a course requirement. With that said, "extra" posts and comments offered during any one calendar week will be accepted at roughly one quarter their normal values. If you post and comment more than is necessary according to the course requirements, this will go towards extra credit, if you post less or tardily, this amounts to partial credit.
• At the end of the semester, I will collect your blog entries on the final day of class, 10 December 2009. In order to ensure that I have the necessary information to grade your contributions please include the following information in the printouts you turn in on the final day of class: Title of your post or the post on which you are commenting, your name, the date on which the post or comment was made, and the content of your post or comment. Without these four pieces of data for each post or comment, I will be unable to grade your contributions and you will receive no credit for entries lacking this information.
• Each student is expected to contribute 10 posts and 20 comments in fulfillment of their assigned blogging requirements. Posts count for 2 points each, comments count for half a point. Each post or comment will receive full credit provided it is on time, relatively on topic and not submitted for extra credit, in which case posts and comments count for .5 and .1 points, respectively.
  

That pretty much does it for now. I'll let you know either in class, by email or over the blog whether further adjustments need to be made. As I mentioned on the syllabus, get in the habit of using the blog to discuss the readings and topics raised in class. The mantra of READ-BLOG-DISCUSS-BLOG is not set in stone but it does offer a way to think about the blog as a place to articulate your thoughts about the reading, discuss those thoughts in class and return to the blog to reevaluate or amplify your previous thoughts. Of course you'll be doing this along with everyone else in class, so the blog also offers a way to discover and think about the ways others are encountering the same information, how we might account for different readings, and why it might be valuable to hear from a perspective that differs from our own.

The Needle Exchange Program

Needle Exchange Facts: Background and History

"The Centers for Disease Control and Prevention (CDC)estimates that close to one million individuals are currently living with HIV in the United States. As of June
2000, CDC reported that there have been 753,907 reported actual AIDS cases in the U.S. Twenty-five percent of these cases are attributed to risk factors related to injecting drug use. When mother-to-child HIV transmission, and transmission though sexual contact with an injection drug user are included, 36 percent of all AIDS infections can be related to injecting drug use. The Substance Abuse and Mental Health Services Administration estimates that as many as 2.4 million Americans may be injecting drug users. The link between the epidemics of HIV and substance abuse and subsequent

There is overwhelming evidence that needle exchange programs (NEPs) work: they prevent the transmission of HIV and do not promote substance use. Since 1989, Congress has restricted the use of federal funds for needle exchange programs. Initially, Congress feared that the implementation of needle exchange programs would
encourage substance abuse by sending the message that injection drug use is endorsed and promoted through the distribution of clean needles. The same thinking prevails
today. While the U.S. Secretary of Health and Human Services (HHS) has the legal authority to determine whether needle exchange programs reduce the transmission of HIV and do not encourage the use of illegal drugs, competing political and philosophical interests have overruled those determinations. As recently as 1998, then Secretary of HHS Donna Shalala certified that based on extensive scientific research, needle exchange programs are an effective component of a comprehensive strategy to reduce HIV transmission and do not encourage the use of illegal drugs."

Giving a drug user a needle creates an obvious controversy. These programs have been an interest of mine for a while and i was interested in what everyone else thought....Do you think needle exchange programs should be illegal? There is obviously a moral reason they should not legal, and a positivist would state that drugs are clearly illegal...so why are they so accepted? I think they are efficient programs and i support. What do you think?

capital punishment as a deterrent?

A Prior post was made with regard to capital punishment as an effective deterrent to murder. The argument was that that this practice has been in effect for a great length of time, meaning it must be working, at least to some degree. I feel that capital punishment is in no way a deterrent to murder. Murder is primarily made in the heat of passion, meaning the people committing murder are in no way thinking in a clear state of mind or thinking of the consequences at the time the act is committed. More importantly, I have sat down and spoke with Ray Krone, the 100th man to be exonerated from death row. He told of the story of how he was convicted of 1st degree murder, based almost entirely on circumstantial evidence. Krone spent ten years in prison, the last two on death row. After these ten years had passed, DNA evidence surfaced and ultimately cleared Krone from the murder as well as a confession from a known sex offender. I could not even begin to imagine the feelings one may have while sitting on death row for a crime you know you did not commit. Krone was the 100th man to be exonerated, leaving one to wonder how many more innocent people were not as fortunate as he.

Obama is Dubbed a 'socialist' by Angry Protestors

Obama’s Health Care Reform was brutally scrutinized on Tuesday, August 11, when the president tried to reclaim momentum by giving a direct rebuttal to the rumors and misrepresentations. Angered protestors held ruthless signs and shouted unforgiving words at Obama during his event. “Nobama Deathcare!” and “Obama Lies, Grandma Dies!” were just some of the callous words expressed by the protestors. Some even called Obama a socialist.
All Obama was trying to do was confront those who doubt him. He remained calm and collective while speaking amongst the angered crowd. People can’t expect things to do a complete turnaround over night; these things take time and Obama hasn’t even been in office for a year yet. The public has to learn to be patient and just know that Obama is trying his best at the moment and figuring out new strategies to be more aggressive; “Every time we come close to passing health insurance reform, the special interests fight back with everything they've got."
How can people call Obama a socialist when he is not trying to place people’s lives under his own control?

Source: Washington Post. Anne E. Kornblut and Michael D. Shear. Wednesday, August 12, 2009

Critical Race Theory

If you guys remember the presentation the other day on Critical Race Theory, and interesting question was asked by the CRT group. They asked the class if we felt it's strange if a minority goes through a day without experiencing any form of racism. At first I thought this notion was absolutely ridiculous, but then I started to think about it a little more, especially after Professor Kurdys starting throwing out the statistics for the number of the members of the black community who attend college, and how it hasn't changed in 40 years. So I have a proposition to make. I think we can all agree that on the individual level racism is on the decline, after all I find it very rare to see any form of racism going on in a given day on a one on one aspect. But after seeing what the CRT team and Professor Kurdys had to say I'm finding myself more inclined to believe that racism is still active on a larger level and perhaps in some of our legals systems. So I just wanted to see what the rest of you guys who didn't speak up in class during the presention were thinking.

Race

Yesterday during the Critical Race theory group, I discussed the topic of Affirmative action and how race was something that was socially constructed. As you may recall I described race as something that was nothing more than a label that was given to a particular group of individuals that that tragically that has created a power structure based on the color of an individual’s skin with whites being on top and individuals with a darker color skin being through of inferior. In the eyes of many this could be considered a type of class warfare because individuals of color were not able to receive those same benefits that a white individual would have been entitled to. Because of this, things such as affirmative action have been established in order to be able try and even out the playing field and try to break down those racial categories. Affirmative action in the eyes of some a program that was meant to attempt to help individuals of color, has actually caused just as many problems for people of color like by not dealing with things such as racism some of the finest institutions in the country. The question that I would like to ask is that if affirmative action has not addressed the problems that it set out to help fix, what is the right way to help put an end to these problems? If race is able to be compared to that of a mere label, we should not be having test kinds of problems.

Benefits of Legal Realism

Sorry for yet another post about Legal Realism, but I forgot to bring up a point that I mean to in my last post that I wanted to throw out there to the class. As I mentioned in my previous posts, I definitely tend to align myself on the side of Legal Realism more so than any of the other theories or philosophies we've studied this summer. Because of this I find there to be many benefits that Legal Realism has to offer. The one thing that I did want to say to the class that I forgot before is the idea that if a judge were to follow a more Realist style of law, then they be more inclined to recognize their own biases and decision making processes. To me this seems beneficial to our judicial system as it may provide a way to fix some of the biases that judges currently have. To me Legal Realism may offer a method of promoting more equality in our current legal system. So would you guys agree or disagree with this idea?

Significant things I’ve learned from this class

For my final post, I thought I’d try to sum up the important things I will be taking away from this class. One of the topics we’d been discussing was why people follow laws. From what I can recall, being told that something is the law (as a child) simply meant that it had to be followed; it was no different than why things fall on the ground or why people die. Having been brought up in a democratic society, there was also the belief indoctrinated that laws are designed for the best of the community, and they simply are the right thing to do. Perhaps I was too naive to have accepted this so easily, but prior to this class, as long as something could be justified in legal terms, I thought ‘well...that would obviously be the right thing to do since some wise people would have thought about it.’ Reading about law in this class has brought me out of the myth that what the law says is always right and that’s how the society should function, and has helped me to take a more critical look at how the legal systems are formed.
There are various beliefs that legal systems are formed on, which the society as a whole imbibes. Having a naturalistic or a positivistic notion about how laws should be framed would seem to change what is held as right and wrong in a community. This has made me realize that there are underlying factors that influence the formation of law and that they all attempt to endorse some sort of a thought process, which may or may not be the right thing to do. This has also made the concept of change very valuable to me. As long as time is a reality, so would change be, and this shows that laws can never quite be perfect, but only accommodating the current trends and ideologies, which are all subject to change.

An interesting case

http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/7116774.stm

To sum this up, there are still Nazi witch hunts going on. This particular article focuses on the pursuit of Aribert Heim. An SS officer notorious for the extremely painful and cruel tests he subjected Jewish prisoners to during WWII.

So lets look at this from two angles. A more restrictivist legal positivist approach and a natural law approach. If I were a natural law theorist, I would be all for these witch hunts. This man made a clear violation of the law, and an enormous violation of morality. Persecuting this guy would be a huge victory for me.

Now as a Restrictivist legal positivist I may feel differently. I would believe this is clearly a waste of time as this is a moral issue. This man violated no laws during the time these acts were commited, and no crimes after the laws changed. Furthermore, this man has been on the run for a long time. He clearly is no threat to social order. Therefore, a trial would be a waste of time.

Perhaps im being a little precarious with my application of restrictivism, but I think this is a fascinating case to dissect. Most of us will agree that this guy should be brought to trial. But if we take a step back and look at it from a legal standpoint. Whats the point? Putting him in jail or to death will hardly accomplish anything, the mans virtually dead already. Second, what does this accomplish? The man clearly has caused no disorder since he was an SS officer. Bringing him to justice is a purely superficial act.

The Sotomayor Debate

If you were in class today, you should recall our little discussion on Justice Sonia Sotomayor at the end of our presentation on Psychological Legal Realism. If you weren't in class and you still read this post, then we basically just talked about the implications that Justice Sotomayor would be considered a Legal Realist. If you recall we asked a few questions regarding the issue of having a Realist in the Supreme Court, however there was one question that I wanted to ask the class that I forgot to mention during my presentation. Personally I do agree with the ideas that Legal Realism talks about, and because I do it makes me concerened to think that judges are basing their decisions based on their own personal beliefs and backgrounds, even if they don't even know it. So there were actually two questions I wanted to ask regarding these ideas. The first being whether or not you guys believe that judges are really making these decisions outside of legal statute; and second being, if you do agree with these ideas layed out by Legal Realism, does it bother you to think that judges are making decisions based off of these outside factors from their own beliefs and backgrounds?

Positivism v. Realism

Today during our presentation of Psychological Legal Realism I brought up the case of Riggs v. Palmer. Like I said in the presentation, it was about the Elmer Palmer who murdered his grandfather to get his inheritance, and the court ruled that Palmer should not receive the portion of his grandfathers estate laid out in his will. Like I said earlier, this case shows us the idea of indeterminacy of the law. I also mentioned how this case shows a contradiction of the teachings of Legal Positivism. Because this idea of indeterminacy was enacted, the court ruled based off of their own beliefs instead of applying the law as required by Positivism. If they had then Elmer Palmer would have still received his inheritance, as there existed no law or statute stating that Palmer should not gain the rewards of his grandfathers will if Palmer killed him. So based on this idea, I wanted to pose a question to the class. Does this contradiction of Positivism mean that Positivism is no longer valid? Or more importantly, if there is this big debate between Realists and Positivists, where do you stand and why?

Psychological v. Sociological Legal Realism

The theoretical differences in psychological and sociological legal realism might seem lucid. Yet, in practice, distinguishing between the two is extremely difficult (as I ended up learning during my research and presentation).

Both sects of realism adhere to the idea of indeterminacy: there are many several conflicting sources of law (precedent and legal statutes). Some factions of legal realism assert that judges reach a decision prior to even considering the legal rationale behind a decision. Judges can then apply precedent strictly or loosely- they can interpret a law textually or search for its deeper meaning, its intent. According to psychological legal realism, a judge's political ideology or 'freudian' psychological makeup influence their decision. Sociological legal realism holds that judges are to some extent bound by a system of laws- that in fact psycho-sociological factors that sway a judge's decision. Judges have this sense of duty- they tend to do what they believe what is socially best for society.

It's hard to differentiate between cases of psychological and sociological legal realism. One of the cases we mentioned in class today- Hall v. Hall, could have been construed either way. To recap, the case concerned the visitation rights of an abusive father. All 3 women on the court sided with the ex-wife. One might assume that based on the women's interaction with men over the course of their lifetime they might have been able to more effectively empathize with the woman in the case. Conversely, one might assume that the women used the law as a tool of social change- they meant to prevent society's sadistic fathers from mistreating their wives and children.

In theory, there's a pretty wide discrepancy between psychological and sociological legal realism, but in reality it's hard to tell the difference.

Where Do We Draw the Line?

Recent reports from the Washington Post announced on Monday that “President Barack Obama has a "winning" strategy in Afghanistan and enough forces on the ground to achieve U.S. goals despite advances by the Taliban” (Reuters). President Obama had authorized 21,000 new troops for Afghanistan since taking office in January 2009 and not all of them were on the ground yet.
White House spokesman Bill Burton discloses:
"The president's strategy hasn't fully been implemented just yet. But we do believe that with the strategy that we have, with assets that we're putting on the ground, that we are going to be able to achieve the goals that we're trying to achieve.”

By the end of 2009, Washington plans to increase the number of troops in Afghanistan to 68,000 and may submit more if needed. **Please not that there were 32,000 troops stationed in Afghanistan at the end of 2008.

America has been trying to get out of this war ever since it started back in 2001. Why don’t we pull out now before the war escalates even more than it already has? Washington plans on more than doubling the number of troops from 2008 by year’s end, and if this strategy doesn’t work then how many more troops do we have to send in and how many soldiers have to die? Their strategies are all trial and error, not knowing what the actual outcome will be. When can we draw the line and say enough is enough?

Naturalist View on Capital Punishment

One of the comments I heard when presenting Traditional Natural Law was “what is the problem with killing a criminal.” Do quote me on that exactly, but that was the main point of the comment. This comment to me refers back to the highly debated upon topic of capital punishment. Personally I have no take on it, but I wanted to look at it through a naturalist point of view. Murder is one of the more sacred laws that is pretty much a violation throughout the world; however, to use it as a deterrent brings up another question. What is more valuable, breaking the law or preventing crime? Some say capital punishment has not yet proven itself as a valid deterrent, but it has been throughout history somewhat. I doubt this ritual would be in place for this long if it didn’t work. Society applies this consequence to the harshest crimes, but is that enough reason to break our own natural law? Yes, we are doing it to main social order, but to break a law to prevent more laws being broken is not a method I believe as a naturalist should be enacted. It is just a thought, but this action is not a pure naturalist approach to resolving the prevention of crime.

Privacy and Natural Law

Being in the first group, we didn’t know what to expect as naturalists (traditional naturalists at that). I believe we gave a vivid explanation of what is natural law, and how we view it in today’s society. I believe the case of Griswold v. Connecticut brought up the most debate. The issue that I took from all the comments was the issue of privacy. The case removed its law from legislation regarding no medical advisements for contraceptives. In the 1960s, it was not really being enforced, but as soon as Griswold opened a clinic, it became a problem. As naturalists, it seems as if we have a problem with public acts that break the law, but as soon as it’s done privately, it’s not really a problem. You can question whether or not that is a problem with Connecticut’s law enforcement because how can you really monitor advice? It is somewhat impossible. I simply have an issue with maintaining both privacy and the legitimacy of the law. If you break the law publicly or within your private home, it is still breaking the law; however, how can you really monitor things certain laws that are done more privately.

The Will to Live Project

With all the talk about Euthanasia and the right to live, no one in class has come up with any alternatives or solutions in determining this issue. We can not prevent emergency situations or problems under the law where a person can not determine their own fate. But, I guess I want to know should it legally be required to have a system put in place so that physicians and family know what recourse to follow, if you should become unable to make a decision for yourself. I came across some legal documentations that have already been but in place which allow a person to safeguard against an unwanted decision for their life once they are no longer to make their own choices. The Will To Live Project allows you to make your own choice in case a situation like this occurs in your life. Here is the overview of what the project is:
THE WILL TO LIVE protects your own life and the lives of
your family members when you cannot speak for yourselves

* Names someone you trust to safeguard your life when you cannot speak for yourself as your "health care agent"
* Names backup agents if your first choice can't serve
* Describes the treatment you do and do not want to guide your health care agent and physicians
* Protects your family and health care agent from pressure from health care providers and others by allowing them to prove what you really did want
* Relieves the agony of decision making for them by making your wishes clear

What is the Will to Live?

The Will to Live is a legal document that you can sign which:

Names someone to make health care decisions for you (your "heath care agent') if you develop a condition that makes it impossible for you to speak for yourself (become "incompetent"), and

Makes clear (in the form of written instructions to your health care agent) what medical treatment you would want if you can no longer speak for yourself.

So, since we have this and it is legally binding, should it be required for all once you reach the age of an adult? And, is society aware that this option is available to them? Would you use this?

Law School's Effect On Its Students

Last week in class we discussed the effect of law school on its students. To what effect if any it has on them, even going so far as to claim some sort of brainwashing. Reflecting on the discussion, I guess I do believe law school does in fact brainwash their students. Law is taught to be its own language, in which to learn you brain must be reformatted to understand. This is done as we discussed in class by teaching students in essence how to think like a lawyer. Where initially students came in with their individual and diverse ideas, they are soon trained to be these homogenous “collective-type” thinkers. But is this really a problem? Furthermore is it nay different than say any other profession. Do we not assimilate the ideas, rules, and standards of the profession, whatever it may be, that we decide to pursue. I think it is just simply the nature of become a lawyer that this occurs much like in any other profession, for example a doctor.

Euthanasia fight

Euthanasia has often been a heated topic that has fueled a political debate. However, I personally believe that this is something that should only end up being a moral debate, not a legal one. It is the sole responsibly of our government should be to develop and enforce the laws that are in place to ensure that individuals do not cross the line and use it as an excuse to murder an individual. One example of this could have been when the state of Oregon legalized Physician Assisted Suicide(PAS), known as the "Death with Dignity Act". The act required that an individual must go before two separate physicians who would both have to find that the individual would have less then six months to live. If it would be determined that an individual was a candidate for the process, the physician would write out a prescription for lethal medication. However, it would be up to the individual that wanted to take the medication or not. Thus, leaving the final choice up to the patient themselves about whether or not they would want to put an end to their pain or suffering. As of the year 2008, the state of Oregon still allowed for PAS and out of the entire state, only 88 prescriptions had been written. Also since 1997 which was the year that the state enabled the act, only 401 individuals considered it as a possible option. This is an example of how government would regulate euthanasia without being able to have a say in the process. This keeps it a personal choice and does not allow for the government to intervene unless their is an abuse of the system.

L, do you know? Gods of Death love apples.

I was recently watching the Death Note series again this weekend and surprisingly enough I decided to create a post about it. For those of you who have never seen Death Note and are unfamiliar with the premise, here is the Wikipedia entry. Death Note is a completed manga/anime series. There are also three live-action films. The series is about a student (named Light), who by chance receives a notebook (Death Note) from a God of Death which gives him the power to kill. There are rules involved with how the Death Note works but they are irrelevant to this post. Light uses the Death Note, in an attempt to create an ideal world, by eliminating the world of criminals (specifically ones who have committed felonies). Light believes that this is the righteous and just thing to do, and by doing so he creates fear in the citizens of the world which causes them to not want to commit crimes. Light plans to be the God of this ideal world, and seems to represent John Austin’s “command theory of law”, or at least somewhat. In turn a character known as L, along with members of the police/detective force attempt to oppose Light for they believe that what Light is doing is wrong; they label him as a murderer and believe that what he is doing is not only against the law but injustice. There seems to be two opposing schools of thought here, but before I get to those I’d like to point out the similarities to what Light believes and what we have been learning. First of all, there is John Austin’s “command theory of law”, Light imposes his will and some people obey out of fear. Secondly, Light believes the justice system in place currently has failed in punishing these criminals which can be somewhat associated with the CLS theory of law at least in relation to the speed at which adjudication and law-making happens. Light also seems to break laws in order to correct what he believes needs to be corrected with the law system. Similarly, L also breaks laws but only in order to catch Light (and later other people who obtain other Death Notes). But however, L and especially the police force have a different view of justice; one in which can only be achieved through the legal system itself rather than this single “God”.

The Death Note series deals with many theories of justice and how to achieve justice, as well as many theories of law. I have only scratched the surface of what is in the series and have left many details out. I implore you to watch the show; here is a YouTube link to the first episode, as well as a link where you can watch the entire series either dubbed (in English), or not (In Japanese with English subtitles-I recommend this).

I’m not here to recruit you to watch or even read the series though. I would like to hear your opinion on the two opposing groups, and more importantly ask-what would you do with a Death Note if you were to receive one? Would you attempt to pursue a path similar to Light’s or take a different route?

Reminder: The Pro-Life Movement is All About Punishing Women for Having Sex

It seems to me that Critical Legal Studies and its derivative field of Feminist Jurisprudence don't get enough representation around here. I figured that since the abortion and euthanasia discussions Friday got everyone all riled up, I'd post one of the more "contentious" charges leveled against pro-life groups; a charge that comes from the realm of feminist thought. This idea, at least in my experience, is almost never brought up in discussions of abortion policy, despite the fact that it merits serious consideration. The idea is this:

The positions of most pro-life policies are not consistent with the idea that abortion is morally equivalent to murdering a child, but instead are consistent with the idea that pregnancy is punishment for a woman having sex.

This idea is not new. It is also important to note that this claim deals with policies of the pro-life movement. It is certainly possible for individuals to hold morally-consistent anti-abortion stances, but this is the exception.

This blog put out a handy chart which covers some typical policy stances, and how they support to view of pregnancy as punishment. The two most damning claims, to me, were the ones dealing with partial-birth abortion bans and rape and incest exceptions. Strictly speaking, to be consistent with the idea of abortion being murder, one cannot allow any exceptions for cases where the mother is raped. The fact that this exception is often accepted by members of the pro-life movement gives credence to the claim that they really are only interested in punishing women, not saving babies.

Also, as a somewhat-relevant sidenote, there are no pro-life groups that support (actively encourage) the use of birth control.

Holding the Elected Responsible

One of the ideas brought about during the discussion period of Friday's class was that the elected officials are responsible for writing legislature. While the discussion over this may have been back and forth it was conducted in a mature, peaceful, and respectable way. I do believe that such conversations as we had in class are important and also that they are necessary and hopefully we all continue such dialogue outside of this class and express our opinions in the political realm. I think the public should have the ability to hold the elected accountable with open forums and "town hall" meetings. That being said, recent actions by people attending such meetings are a detriment to such open debates.
Janet Adamy, in an article in The Wall Street Journal, writes on how many Representatives have been canceling these open forums due to an increased out pour of temperamental concerned citizens who have been shouting and causing "near-riots" with the objective of demanding answers from this elected officials. While I don't believe that this forums should be canceled, I understand the concern that these Representatives have for order and their safety. Most of these actions are people upset with Democrats over the national health-care issue. Some Republicans such as Rick Scott, leader of Conservatives for Patients' Rights, think that these actions are just concerned citizens who are just "expressing themselves." It is good that these people feel that they have the right to get answers from the elected, they do. The problem is the way they are doing it. Rep. Tim Bishop (D., NY) was continually interrupted while trying to answer questions by people demanding that he "Answer the question!" Adamy writes, "At one point Mr. Bishop yelled back ' I'm trying to!'" This was in response to the "answer the question" demands.
While I understand that the public needs to be heard, there still needs to be an order to things. People need to keep their composure over these issues even when they hit close to home. There are no simple solutions to these issues and sometimes citizens need to see that their view is biased. Lawmakers, however, need to listen to the people about their concerns and make informed decisions based on the public sentiment, but that can't not be heard with people yelling and definitely isn't heard with out public forums.
(Adamy, Janet. "Lawmakers Rethink Town Halls." The Wall Street Journal 8 Aug. 2009, Weekend ed., sec. A: A5. Print.)

The Purpose of Law

I think people will differ in their opinions on rights that deal with the freedom of choice for an individual basis depending on what they believe the purpose of law is. They may view law as something that should evolve to fit moral or social norms or they may view law as something that should not be made to bend to its citizen’s desires. In other words some may think law is made to adapt to people and other feel that law is or should be above reproach. Personally, I think that law should be treated as if it were clay that needs to be slightly molded in order to meet the needs of an evolving society.

With regard to the last class discussion, I think that euthanasia should be determined by the individual rather than legislature. I think that laws should legalize it because it allows people to die on their terms with dignity. Tyler brought up a good point about how people can take advantage of a law that promotes euthanizing in the same way the Nazis killed the mentally ill and disabled. However I think that it is important to understand that the individual who undergoes the process needs to be fully competent at some point to agree to it. In other cases where the parents or guardians chose to do this, they follow through because their child is incapable of any cognitive function and what made them who they are is already lost. I don’t think it is fair to compare this to what the Nazis did; their purpose was to “better” the human race by eliminating those that did not fit into their ideals. To legalize euthanizing would not equate the two situations.

Euthanasia

Class today sparked a pretty heated debate on euthanasia. One of the strongest arguments made on behalf of legalizing euthanasia is probably that people feel that euthanasia, like abortion, is a choice issue. Some people feel that it is the patients choice whether or not they want to end their life when it is proven that there is no chance for them to get better. Some people don't want to be kept on a feeding tube for years and years. However, there is still many pros and cons that have to do with euthanasia. One pro would obviously be that it would end a patients suffering. A con might be that you have to question under who's authority the euthanasia would take place. This could be extremely difficult in some cases, for example, the case of Terri Schiavo. Her parents wanted to keep her living while her husband kept saying that Terri would not of wanted to be kept on life support even when she had no chance of getting better. An argument made in class today was that if euthanasia was legalized then that would free up medical funds to help people who had a chance to get better. The money could be put towards finding a cure for cancer or something useful like that. However, another argument was made that if euthanasia was legalized in all states that we would just keep pushing standards and it would not only be people who have no shot at getting better, it would evolve into mentally ill patients, and possibly handicapped patients. I personally think that when dealing with euthanasia you need to deal with a case to case basis and I think that it is up to the patient and the family.

But everyone's doing it!

Incorporationists believe that morality and law can work hand in hand along as it facilitates convergent behavior and functional society promotes and is governed by convergent behavior. I think this is interesting. So convergent behavior seems to be an accepted norm. You can remember when you were younger and Johnny's parents let him get ice cream even though you were not aloud to. Do you remember pleading and using the commonly known phrase: "but mom!!! he's doing it!" There are many variations but basically, i'm saying that people find comfort in convergent behavior. Have you ever noticed that in the halls people tend to walk on the right side? It's not a rule, but it makes getting around a lot easier. In a society, if you are unsure of what to do, you can look around and see what others are doing. Stopping at a stop sign, yielding to pedestrians, ect...but is this always good?
Let’s talk about a little something called adultery. Now that's a fun word. Some people have the moral belief that sex should be saved for marriage and should be only shared with the one you love and marry. It seems these days everyone's doing it, everywhere, some even with strangers. Haha I’m sure you know what i mean. Not only has that, but the rate of unfaithful partners been steadily increasing. Everyone's doing it right?? I even recently read an article about how it's even more common to cheat on your spouse with someone else's spouse...killing two birds with one stone eh? So as you can see, convergent behavior isn't always a plus...look at the Nazis for example. That didn't work out so well, did it?

During class today the modern natural law group briefly touched on the topic of abortion, although no one really voiced an opinion on the subject. I am sure that everyone has their own strong beliefs on this topic and I would like to share mine. Most of my feeling towards this subject are paralleled by those of proponents of pro choice. Rather than basing my arguments on profound religious beliefs I will simply state why realistically, I feel the decision should be up to the parties involved and not the government or lawmakers. Before the decision of Roe v. Wade many women resorted to many ‘back alley’ dangerous surgeries in order to perform abortions. The desire for this practice will always remain, and as with most illegal practices, people will find a way to find these means. With licensed doctors performing these surgeries in a safe and sufficient manner, we can assure that this practice is done in the safest means possible. Other important issues include whether or not a woman is old enough to take care of a child and whether a woman already has other children she needs to care for, leaving a child to be neglected. Other important elements that need to be considered are cases when a woman is raped. Should this woman be forced to give birth to a child that will only bring extremely detrimental feelings toward her? I agree that there are many strong arguments for anti-abortion laws, however, I feel that the ultimate choice should be left up to the parties directly involved.

Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom

Dworkin's opening salvo announces the major theme of his book: "Abortion, which means deliberately killing a developing human embryo, and euthanasia, which means deliberately killing a person out of kindness, are both choices for death. The first chooses death before life in earnest has begun, the second after it has ended." Just this quickly does his argument go astray. He seeks to create a parallelism between abortion and euthanasia by the repetition of the phrase "deliberately killing" in both contexts. But this first sentence is remarkably unresponsive to the paramount questions of interest, consent, and choice.

On the question of abortion, Dworkin marshals a wide array of philosophic and legal arguments to defend the Supreme Court's decision in Roe v. Wade, which guaranteed each woman a constitutional right to abortion. It is a huge moral controversy because some believe life starts when the sprem meets the egg. The legal definition (i believe) is that life begins when you take your first breath. In other words, abortion is not murder. It's not to say that third-trimester abortions are just, but certain abortions should be legal. On the argument that it is immoral to abort a pregnancy after the sperm has firtilized the egg is quiestionable. "The killing that is done in an abortion is done by the mother to the embryo, without its consent and against its interest." It is much more morally just to abort a pregnance if the mother is aware of how unfit she is. I'm not saying that we should all not use protection and just get an abortion everytime we get pregnant but In the extreme... If a cracked out woman is selling herself for drugs and gets pregnant, it is unfair to the unborn child to be given a life that may result in permanent damage and an overall horrible life, if even one at all. In the begining of the third-trimester, the babies eyes have started to open, the bones become fully developed, pupils contrict and dialate, and even though the lungs arn't completely formed, the baby can practice breathing. I strongly disagree with third-trimester abortions, one the baby can think and dream and is very close to labor.

With regard to euthanasia, Dworkin defends the right of each individual, again on philosophic and constitutional grounds, to end his life when his personal condition is one of endless misery or falls into the void of a permanent vegetative state. I also agree with this. Each individual has the right to live and the right to die. That's not to say that someone else cand ecide that for you. Looking at the case we talked about in class, i believe it was not the parent's right to keep her on the feeding or take her off. I personally don't belive in artificial life and that God's will is God's way.

no one likes a rat

In this country, the judicial system punishes people in the "interest of rehabilitation". What does that mean to the courts? Furthermore, due to the rigidness of sentencing, when is one actually rehabilitated? I feel that once you are sentenced to "rehabilitation via incarceration" you are officially screwed. The courts , especially in Centre County, do not investigate a person before handing down a standardized sentence that does more harm than good.
For example, this town is full of "rats or snitches" which work for the malice prone DA's office. When these "rats" get in trouble they run to the District Attorney and offer to throw a handful of their own friends into jail so they can go on with their "rat" lives. The way they do this is through controlled buys; at least in the recreational drug world. A rat gets in trouble, then goes around to all his friends and tries to score a small amount of anything from them under the supervision of a narcotics agent, when the buy has gone through the "rat" goes free and the person who helped the "rat" out gets a plethora of felonies assessed to his/her record. These felonies do not go away, and are handled with 9+ months of prison. When released from prison, the once future lawyer, businessman, doctor, etc. is reduced to flipping burgers for the rest of his/her life becuase no one hires a felon.(Voices of Central PA, May 2009 http://www.voicesweb.org/node/2488). You can read in depth about what i am talking about via the link.

My point is, when someone is released from prison they are still unable to maintain a proper lifestyle post release. College students that get out of centre county correctional facility with delivery of controlled substance charges that are a result from giving someone who was supposed to be their friend a small amount of cannibis but ended up a victim of Michael Medeira's snitching game can not use their degrees; as far as they are concerned their degrees are placemats for the dinner table. The courts in this county are not in favor of rehabilitation, they are in favor of statistics and national spotlight as "one of the safest counties in America". Where in Centre County is one rehabilitated through the direct actions of the police or the courts? The law around here is not law but a collaborative effort of a bunch of politicians who can create their own fame at the expense of others.

Fair may not equal Just

Excerpt from the Speluncean Explorers: “It seems that in dealing with this extraordinary case the jury and the trial judge followed a course that was no only fair and wise, but the only course that was open to them under the law. The language of our statute is well known: “Whoever shall willfully take the life of another shall be punished by death.” This statute permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves.” This sums up my thoughts on the Spelunkers and how their situation transcribed. Often times is the law we come across many decisions that are fair or just but may not be both. It is hard to not have empathy for the situation of the men but we can not discredit, as legal scholars, the fact that the law is broken and go against stature for certain situations. The course of action that is laid out for us does not give much room for exceptions and tragedy always makes us inclined to change our perception on legal turn outs. So I wonder, can there be legally moral exceptions to the laws we already have? And, how would we determine such differentiation?

(for last week)

Creditors, Debtors, and Soverigns

The Nietzsche excerpt we read on Friday used the terms creditors and debtors to describe parties in a contractual relationships. According to Nietzsche, the creditor takes delight in his ability to exercise power over the creditor. The "lower and baser" the position of the creditor in society, the more enjoyment he derives from controlling the debtor.

To some extent, I believe Nietzche's beliefs may mix with Austin's theory of authority. Austin argued that civilians follow law primarily because they wish to avoid sanction. It is a fundamental expectation that as a citizen, you will follow all laws without objection.

Blending in Nietzche's beliefs into Austin's theory is a bit of stretch, but I believe the two blend well. A sovereign (such as a king) may enact and apply laws irrationally or unjustly for the solely to exert dominance. He takes pleasure in his ability to command the masses. The populace, meanwhile, is helpless. As debtors, they've pawned away most of their freedoms and liberties in order to reside under a soverign's domain. In return, they are protected from invading armies and have access to food and shelter. They provide their entire lives as collateral- one misstep and the citizens could be put to death or jailed for life.

In class, we took elements of Nietzsche's master-slave philosophy and compared it to Holmes' legal realism philosophy. It appears that elements of it can be incoroporated into a positivist philsophy as well, though.

"Differences are everywhere"

After reading Tyler's post which can be found here, titled "Geography and Legal Crossroads," I had the urge to relate to his post with more specific examples due to his ambiguity and lack of specifics. I'm actually from Washington State, so every day I see differences between where I am from and Pennsylvania. A lighthearted example: when it rains in Pennsylvania a vast majority of people, at least on the University Park campus use umbrellas. In Washington or at least in the Seattle region, no matter the severity of the rain, hardly anyone uses or even owns an umbrella. This might be because of varying regional norms, or the people in Pennsylvania have more common sense, but as Tyler said, "law and morality both change slightly from place to place." Of course using umbrellas isn't a law, but I believe that by examining small regional differences in habit and values one can attempt to better understand the differences in law as well.

Initiative-1000 was recently passed this last November in Washington State. This initiative involves the idea of euthanasia and is based on Oregon's death with dignity bill. Washington State is now in favor of allowing patients to be supplied with a lethal medication, only under certain circumstances of course. This is a great example of how law can vary in different regions. Washington was the second state to pass such an innovative bill, both states being in the Northwest. However, by doing a little research, it looks like the Northeast might begin to adopt similar bills, Pennsylvania being the third (article can be found here).

One example of how the law can vary from state to state involves the process of initiatives and law-making. In Washington State a voter can very easily create an initiative and get it on the ballot for November. All the voter would need is about 120,000 signatures, that's about the population of Everett, a city just north of Seatlle-my hometown. A voter can also attempt to have a congressman, a state executive, or a state legislator to sponsor and create such a bill for them. Unfortunately, I am unaware of the law-making process here in Pennsylvania so I cannot provide a comparison, although I'm fairly confident it is different.

What use does providing a different system in which to make laws benefit one state over another? Is this process derived from a moral position of the Northwest, or does it help in preserving the society of the Northwest? I don't know. But, by looking at such laws or regional habits we can attempt understand law and varying societies better which will allow us to use law in a more effective manner.

Hart: Law and Morals

A law is commonly defined as,"the collection of rules imposed by authority." While on the other hand morality is defined as, "concern with the distinction between good and evil or right and wrong; right or good conduct." As Josh stated in class Hart believes the law is a fact or how something is. Hart believes that morality is value or law as it ought to be. Hart also says,

"They certainly accepted many of the things that might be called

"the intersection of law and morals." First, they never denied that,as a matter of
historical fact, the development of legal systems had been powerfully influenced
by moral opinion,and, conversely, that moral standards had been profoundly
influenced by law, so that the content of many legal rules mirrored moral
rules or principles. It is not in fact always easy to trace this historical
causal connection,but Bentham was certainly ready to admit its existence;
so too Austin spoke of the "frequent coincidencers" of positive law and morality
and attributed the confusion of what law is with what law ought to be to this very fact."

When I think of law and morality I think of two different things that are also closly related. To me law has to do with the court and judges, but also with our legal system and things that have to do with that. Morality has to do with your conscience and wanting to do good and stay away from evil. I think that the legal system has been influenced by the idea behind morality because when you follow the laws you also have strong morals because you aren't doing anything wrong to cause you to have a guilty conscience. How Hart believes it to be is that the law is a fact or how something is and that morality is value or law as it ought to be. I agree with him because morality is based on values and also law ought to be like that because everyone should have good values. Law is also based on facts because the law is rules to follow so I agree with him on that as well.

Geography and legal crossroads

I’m currently sitting in a hotel room in South Carolina. And to be honest, law is the farthest thing from my mind right now. But in the spirit of good blogging, I’ve ruminated a bit on what to talk about. I’ve decided to take a closer look at how law changes from place to place, and why that influences my belief in a legal crossroad between law and morality. Well what brought on this idea? II was just sitting in a restaurant, sipping on sweet tea, and it crossed my mind how it’s different down here than in the North.

These differences are everywhere. Whether you cross the street, the county line, the state line, or even if you head out of the country. Everyone does things a little differently. Now law is supposed to either be a proponent of social order or the worldly hand of morality. If this is the case, law must change from place to place. This is a very simple idea, which we all agree upon for the most part. The real argument comes when examining morality in relation to this idea. If you are a traditional law theorist you believe that law is derived from a pre ordained morality. Well this idea that law changes from place to place proves that morality is not a codified index for human interaction. Morality itself changes quite often.

What I’m really getting at is that we can’t define law in such absolutes. Saying law is completely and utterly separate from law is an absolute. Saying that law is derived explicitly from morality is an absolute. We can’t stand by and argue completely for one side or the other. Law itself is not black and white, why should its nature be any less grey?

What I am basically saying is that geography can show us how this war between the absolutes is faulty. Law and morality both change slightly from place to place. Because, at the heart of all this, law and morality are human constructions. Law is either a guiding force, or a defining statement. We created it and as good humans, we are all different. The final point is this, when discussing legal theory be cautious. Don’t take an stand on one of the absolutes, argue in the grey areas.

Legal Realism As I Understand It

Obviously we've been talking a lot about legal realism in class since we've been studying the readings about it. As a result we've been talking a lot about the arguments against it. Personally I don't really understand many of the arguments against the idea of Legal Realism. Or more specifically I don't really understand how people can deny the findings of Legal Realism. What I mean by this is that we have all seen that people from different regions and upbringings possess completely different social, moral, and political beliefs; so I don't see why some legal philosophers choose to deny that is occurring amongst judges or that it's a problem. Now don't get me wrong I'm not attempting to argue against idea's such as Legal Positivism and Natural Law, because there are aspects of both of these ideas that I like. I'm just confused as to why some people argue against the idea of Legal Realism. Even if you don't believe that psychological or socio-economic backgrounds affect a judges decision in court, just the fact that it could be occurring is a issue to me. I just personally feel that one aspect of the law is to be as equal and fair as possible, and I find that judges who view the same case's and come up with different verdicts to be a threat to this aspect of the law. I don't want to sound like I'm ranting against all other legal ideals, I was more hoping that someone could bring me to light on the reasons why people would deny the ideals of Legal Realism, so if any of you could help me out on this I would greatly appreciate it.

Legal realists are tacitly legal positivists

When this statement (title) was brought up in class, it surfaced many of the confusions I’d been having in properly understanding the different legal theories.
Legal realism and positivism seem similar since both understand law to be something constructed by man—that there is a definite difference between morality and law. While positivists think that laws come from social norms, realists think that the decisions made are influenced by the judge’s sociological context (the social norms around them). The difference would seem to be that in the positivist’s case, while the laws come from social norms, they are strictly to be applied as they are on the basis of what the text reads. The realists on the other hand, would think that it isn’t just the written law, but other factors play a crucial role in jurisprudence as well, and therefore the decisions made are on the basis on the context.
In taking the context into account, they analyse the cases with respect to things like public opinion and why there might be a reason to go beyond the written law and see what’s right. Here, considering the individual interpretation behind the reasoning for a decision makes the realist’s stance more pragmatic. But, I feel that this tends their argument towards the natural law theory because in going beyond the written law, they are trying to look for what’s actually right. This may not be the same as looking for the purpose of a law and trying to apply that, but why would one go beyond the written law if the decision it proposed didn’t seem right?
P.S: I’m sure they vary, I’m just a bit confused here.

Since we have been talking about cannibalism in both the Oresteia and the Spelunker trail I thought this recent investigation was interesting, though on a different moral premise than the other two.
In San Antonio, Texas, there was a mother of an infant son who suffers from schizophrenia and postpartum depression. This mother had recently broken-up with the father and was living with her parents and her sister and her sister's two kids. A week after the seperation polica respond around 5 a.m. to a 911-phone call. They found that the mother had stabbed herself in the heart and stomach and that the infant dead and grossly mutliated. They later figured out that the mother had disifigured the infant, ate three of his toes, decapitated him, and ate parts of the brain. This was all done because the devil told the mother to do it, or so she says. There are reports that the mother was in and out of therapy and treatment for her conditions.
While all of this is unsettling, the question for this class is not is the mother at fault but rather, given this situation what should her punishment be? While the mother is schizophrenic, it should be noted that the father is as well and that he is calling for the death penalty. I assume that he wants the mother to suffer. This is one of the reasons for law that we discused in class. But as a society should we take a life out of revenge or should we try to help this woman with her illness?
(All information was gathered at FOX News. http://www.foxnews.com/story/0,2933,535300,00.html?sPage=fnc/us/crime http://www.foxnews.com/story/0,2933,534940,00.html)

Government is liable for high incarceration rate

In class discussion on Friday, Professor Kurdys left us with a hanging question; is our legal system doing an accurate job in what it is intended for? (not exact question, but something similar) In my opinion, it isn’t doing even half of what it is supposed to do in our criminal system. For the past 30 years, the United States has increased the incarceration rate each year, and now we have the highest incarceration rate in the world. For the first time in American history, more than one in one hundred (1.6 million) U.S. citizens are behind bars. According to the U.S. Bureau of Justice Department, if recent incarceration rates remain unchanged, an estimated 1 of every 15 persons (6.6%) will serve time in a prison during their lifetime. Studies also show that within three years of their release, 67% of prisoners are rearrested and 52% is re-incarcerated.

The U.S. department of corrections is supposed to “correct” rather than simply punish those who disobey the law. Public safety and social order are not only threatened but they also become corrupted. If the government and society both made an effort and contributed to alternatives to prison then the incarceration rate would start declining and public safety would become less jeopardized.

Our legal system was invented to keep our country at peace and maintain social order in society. Where have all of our morals gone as a country? Are offenders being thrown in prisons or jails just because it saves the government paperwork? Is the U.S. government just as liable for offenders after their release from prison?

Holmes Path To Law

In viewing Oliver Homles’ idea to the path of law, he suggests that incorporating morality and logic confuses its purpose. He felt that under an ideal legal system we as citizens would be able to predict how the law will affect us and the two concepts disrupt our ability to do so. I agree and disagree with this idea, since both logic and morality have valuable and positive effects on the law. More so logic than morality is fundamental in the workings, construction, and action of the law. He equates applying logic to law as viewing law itself as a problem that can be solved and solved in one “right” way. That is problematic ad an over exaggeration, law such following and be guided by some logical deduction of it would just be spontaneous, irrelevant, and inconsistent. There is a limit, it should not me so logically formatted that it leaves no room for deviations and exceptions, and that is a formidable task but very possible which I feel Holmes neglects. When applying morality, it’s even harder but there should be some relationship between law and morality. After all law does dictate wrongs and rights which are moral factors, but it is much easier to allow morality to overtake law which is the only way I could see Holmes’ path of law being clouded. In essence, both morality and logic are related to law and should be, the task is to make sure that the law is an independent system that incorporates these ideals and not constructed around them.

Dire situations

Earlier in the week discussing the topic of the spelunkers got me thinking of other examples of dire situations that individuals were in however, their taking the life of an individual was justified and they were not punished. This one particular example stuck out the most for me:
In February 2005, an Italian journalist was taken hostage while reporting in Iraq and was held for a month. One of the top ranking intelligence officials of the Italian government at the time would travel to Iraq in order to help negotiate the release of the journalist. At the same time US troops in Iraq were falling victim to suicide bombers that would load their vehicles with explosives and attempt to run checkpoints that US forces would be occupying. In order to protect the lives of our forces, the rules of engagement (ROE) stated that any vehicle that US forces felt posed a potential threat; they were allowed to open fire on the vehicle if the driver would not respond to several warning shots. On the evening of March 4th, 2005, the Italian was released from her capturer’s custody. The intelligence officer that had arranged her for her release drove the vehicle that would extract her and flee with her to the Baghdad airport. While in route to the airport, the vehicle was moving at a high rate of speed as it came upon a checkpoint that was being run by US forces. US soldiers saw the vehicle approaching at a high rate of speed and fired several warning shots into the air in an attempt to get the vehicle to stop. However, the driver did not heed these warning shots and the soldiers opened fire on the vehicle which would result in killing the driver and wounding the journalist who was in the backseat. After an investigation conducted by the US military, all pending charges were eventually dropped against the soldier that initiated the engagement on the vehicle.
In this case as well I agree that the soldier who opened fire on the vehicle should not have faced any legal repercussions because the situation at the time was considered dire. Had he not have fired on the vehicle and it had been a suicide bomber, many soldiers could have been wounded or even killed. Society ends up making rules that help protect the majority. It also allows for different rules for special circumstances. In this case, the ROE’s were the acceptable rules or laws that were followed in a dire situation. This is similar to the case of the trapped explorers who were also in a dire circumstance who ended up taking the life of one person to ensure the survival of the rest.