I think our moral intuitions--even things we think are absolute-- are often in conflict with our reasoned moral judgments.

This strikes me as the "problem of dirty hands" discussed by various philosophers. The idea isn't complicated. Sometimes, moral principles often should-and must- be violated for the greater good.I think the most famous manifestation is the play Dirty Hands by Sartre.

The most important aspect, in my view, of the problem of dirty hands is that we SHOULD feel bad about these short term violations of moral principles, but we must nevertheless do them. That's why breaking the principle itself, though it must be done, does not eliminate the moral culpability (hence the hands are still dirty).

-- ConradCoutinho - 02 Apr 2010

>proposal that all trials are theatrical displays for society – do you think this is true? … Maybe if “‘law exerts power over people’s minds,’” the law is the thing doing the deterring and creating retribution and social abhorrence. One associates the law with the courts, but both readings suggest law creation is a political animal…
Hi Aerin, I do think it’s true, although much more so for criminal trials. Legislators, prosecutors, and other elites acknowledge that no one expects the public to check the Penal Code every so often to brush up on what we’re not supposed to be doing. Instead, I think they rely partly on the public’s attraction to the drama of criminal trials to get us to learn what the law is. A trial that is highly publicized or ends up as the basis of a TV show is a sort of entertainment-with-a-message. Also, I think the fact that most cases end in pleas shows that we don’t maintain a court system exclusively to ensure precise service of justice in every case. Of course there are a lot of reasons for the frequency of plea bargaining. But one reason could be that the theatrical/educational purpose of trials is served even when only a few cases are tried.

-- AmandaBell - 01 Apr 2010

Imagination has many uses, but substituting for legal research is not one of them. You should have checked. You would have discovered that your intuition was entirely wrong, for many reasons, not the least of which is the absence of any legislative action.

Odd, that, because Michael Milkin wasn't charged with tax evasion. The government charged 98 counts descending from a RICO conspiracy predicated on securities fraud offenses committed through insider trading activities, and he pled guilty to six felony securities violations. No tax charges were ever filed, let alone litigated to judgment. Two lessons follow from this. The first one—that you should check what you say because you have a penchant for unprofessional inaccuracy—you should have learned by now. The second is that if "it can happen to you" is supposed to represent a vernacular expression of general deterrence, there is every reason to believe that it fails, because even a more or less educated person with some knowledge of legal machinery is likely to have no idea whatever which supposedly deterred conduct resulted in even the most notorious of criminal convictions.

or Dennis Kozlowski to corporate malfeasance), the reprehensibility of the act quickly lodges into the collective consciousness of the nation. That said, even if we assume efficacy and longevity to judicial precedent, the retroactive nature of the charge and the incalculable burden to the defendants represent due process violations too great for a government of the people to undertake as cavalierly as the Dudley court did.

As there is no retroactivity problem under anybody's actual legal principles (outside, of course, the infinitely flexible domain of your imagination), and there isn't any scrupulousness anywhere against burdening a man who admits killing with the trouble of being tried, this statement amounts to the opposite of a successful conclusion.

Some interesting ideas are being bounced around here. I've a thought stemming off of Aerin's point #2 re: "officialdom wanted a legal decision, not the punishment of the two unfortunate men involved" and the wisdom of its decision.

In mapping out just how this case turned out the way it did, consider the different treatment of retroactive prosecution under English and American law. Under the doctrine of parliamentary sovereignty, English government is unencumbered from making retroactive law, while the U.S. Constitution proscribes retroactive law through the ex post facto clause. In Dudley, the English government seems to have leveraged an authoritative freedom to criminalize what was, at the time committed, accepted practice among sailors on the high seas. But, I think that under an ex post facto provision, the pointed conflict between English common law and a common maritime practice raises vagueness challenges to the charge of murder. If the case had been tried in the U.S. under similar circumstances, options for the government might have been limited to judicial decree (maybe through a civil claim brought by the decedent's family) or legislative response. I imagine Dudley and Stephens would have been insulated from a murder charge through the Art. I §9 check on retroactive criminality.

The upshot: could the English government achieve the same goal (condemnation of cannibalism) through alternate legal outcomes? Or was criminal conviction necessary or even the best way to implement the force and effect of a new and unfamiliar law?

There seems to be an "it can happen to you too" message behind criminal convictions that resonate with the populace more than statute or decree. Once a crime has been personified by a well-known defendant (think of what Michael Milken did to reinforce the criminality of tax evasion or Dennis Kozlowski to corporate malfeasance), the reprehensibility of the act quickly lodges into the collective consciousness of the nation. That said, even if we assume efficacy and longevity to judicial precedent, the retroactive nature of the charge and the incalculable burden to the defendants represent due process violations too great for a government of the people to undertake as cavalierly as the Dudley court did.

-- MichaelDuignan - 30 Mar 2010

A few additional thoughts, having now read All Great Problems Come From the Streets:

1. One immediate connection between this story and that of the Mignionette is in the judge’s assessment that “the real power doesn’t exist in the courts,” a fact pretty brutally evinced by the UK’s decision to try Dudley despite nobody’s belief he had actually committed a crime. This was a story about politics and about the Crown laying down a few additional miles of legal territory (“‘politics is the will to gain and keep power’”). Judge Day tells the author that although she has power, she is not a politician because she cannot cherry pick the cases or the laws as they apply, she is forced to rule on what she is given.

2. Amanda in response to your proposal that all trials are theatrical displays for society – do you think this is true? I don’t think I do. At least not when someone with the clarity of Judge Day is sitting on the bench. Maybe if “‘law exerts power over people’s minds,’” the law is the thing doing the deterring and creating retribution and social abhorrence. One associates the law with the courts, but both readings suggest law creation is a political animal, which is wrapped up with societal mores and the manipulations of whatever political body is in charge at the time. Perhaps this is why Judge Day calls lawyers spin doctors and then references LBJ as having “‘the ultimate lawyer’s mind.’”

-- AerinMiller - 25 Mar 2010

I like what Aerin wrote in her Point 3.

> The irony is that the retelling is handled so much more effectively as a trial . . . than the actual trial itself, in which most of our evidence is excluded.
I agree, but I don’t see an irony. All cases are like this. Victims, defendants, witnesses are all human beings who feel, who hurt, who are afraid, who make mistakes. They all have a lifetime of personal and cultural baggage. The opinions we read in our case books are judges trying to apply formulas of law to complex human situations. Dudley is a widely-assigned case because the facts are so extreme that they show how inadequate our formulas are.

> not a trial at all, but a theater performed . . .
Maybe all criminal trials are theater. Deterrence, retribution, social abhorrence – a trial needs an audience in order to have these effects. I like learning from a historical narrative rather than from a case book. I feel less confused by legal rules that have been conjured out of thin air when I can see what real-world circumstances caused people to feel the need to conjure them out of thin air.

> Although they went through the motions of the trial to set some badly-needed precedent about happenings on boats, Dudley and Co. were not actually on trial.
If I were them, I would have been very afraid throughout most of the trial process.

-- AmandaBell - 23 Mar 2010

I think one of the points of this reading is what Jessica stated above: "I would have done the same thing." Given the circumstances that Dudley, Stephens, and the other guy were in, many of us would have done the same thing. Which begs the question: if we were dealt the cards of many of today's "true" criminals, would we do the same thing? And, if so, what implications does this have on the theory of crime and punishment?

-- MatthewZorn - 23 Mar 2010

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1. I am not sure why Eben is having us read this two-parter, but I don’t think it has to do with questioning the moral decision making of Dudley and co. The 19th-century UK’s general consensus, and, after reading the facts of the case, a consensus I think I agree with, is that this is as close to a morally neutral murder (I know its an oxymoron)as it gets. The facts are pretty much analogous to the ethics class case studies we worked though in college (you have a gun and you can shoot one or the rest will be massacred by their captors, etc) and a majority (Kant excluded) would sacrifice the individual to save the group.

2. The second half of the readings, concerning maritime custom and cannibalism in particular, and the relation of these to the trial, is encapsulated in the phrase “officialdom wanted a legal decision, not the punishment of the two unfortunate men involved” (p. 337). First of all this phrase reinforces my contention that the crime, although unspeakably horrendous, was not really a crime at all, or at least not something a majority would want to call a crime. Criminal law was arguably not developed to handle these freak state-of-nature situations, which, one feels (fine, I feel), should be handled by some other, more organic code. It appears that both the populace and the lawmakers of that period felt similarly. Although they went through the motions of the trial to set some badly-needed precedent about happenings on boats, Dudley and Co. were not actually on trial.

3. Perhaps the best part of this true story is the storytelling itself, which is done in a sort of pastiche of the many, many documents scribbled, sorted and filed before the incident’s conclusion. The irony is that the retelling is handled so much more effectively as a trial of Dudley and Co. (who come out, at least to me the juror, as not guilty) than the actual trial itself, in which most of our evidence is excluded. In fact, the trial, as stated above, is not a trial at all, but a theater performed to circumvent maritime legislation by creating some new and sorely-needed common law.

This is really a rough start to get the ball rolling- I'd like to hear what others think, and think some discussion around this topic might help me (and maybe others) figure out my own thoughts or organize/clarify the issues and help me think about some important criminal law questions.

-- JessicaHallett - 22 Mar 2010