Why isn't this a link? Surely you can help your reader find the case you're talking about.

In the opinion you are citing, their convictions were reversed. Isn't that the right way to describe the situation.

What does "a host" add? Lawyer's precision would expect you to specify the questions at stake, and as the syllabus shows, it's possible to state the questions succinctly.

Sufficient grounds for what sort of legislation: Taxation, criminal liability, health and safety regulation? Is "moral opprobrium" a true category, such that everything subject to moral opprobrium would be equally appropriate as the object of any particular form of legislation? Aside from the turbulence of the judge's style of self-expression, what makes this an intelligent or interesting question, and not a load of bollocks?

No, he says the opposite of that. He also says, however, that if you want to know the law and nothing else, than you have to isolate it from the other forms of social thought and expression it closely travels with and resembles. This point appears to have confused you, though I warned you in class about the difficulty.

Guttural means "in the throat," not wherever you thought it meant to place itself. I think this passage is accurate as to what Cohen says, but somewhat misleading as to how he comes to say it.

That wouldn't make much sense, but what Holmes actually says, which is that it is the deposit of our moral lives, which is what you are saying in the first half of the paragraph, under the apparent impression that you are differing from Holmes, I think we all from our different corners believe to be true.

Perhaps you mean the Atlantic? And perhaps the utilitarian moral code is actually something a little less pragmatic?

Some other people, in some other places. But I don't understand why you think that Maori resistance was unusual.

I don't understand the organizational logic of this essay. Is it about morality as a source of law? If so, what's the argument, and where is the conclusion? Is it about cannibalism as a protest against imperialism? Where was the evidence that this is actually an attested practice? What the draft needs is clear structure, progression through the stages of developing an idea, and a conclusion affording the reader a jumping-off point for further thinking.

This question of morality’s place in the law is fundamental to understanding the nature of the law. The modern conception of law is, as Felix Cohen described in 1935, “an autonomous system of legal concepts, rules, and arguments, [that] must be independent both of ethics and of such positive sciences as economics or psychology.” Similarly, Oliver Wendell Holmes in 1897, described this enduring perception of the law as “a system of reason, that it is a deduction from principles of ethics or admitted axioms.” Both legal positivist characterizations are rooted in the Aristotelian idea of “law being reason free from desire”. But the description of how the law is perceived to be is not where Holmes or Cohen end.

Holmes’ opinion of what the law actually is, is the bad man’s conception of the law “The prophecies of what the courts will do in fact, and nothing more pretentious.” According to Holmes, morals “deal with the actual internal state of the individual’s mind, what he actually intends.” So as Holmes sees it if the law is about outcomes then morality’s preoccupation with internal states of mind has no place in the law or at least shouldn’t. He admits that logic is not the sole force at work in the development of jurisprudence, but that “Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.”

The counterpoint to this is Felix Cohen’s reference to “forgetting terrestrial human affairs” to engage in the “transcendental nonsense” of the law. The irony that he presents is that human affairs and our moral concerns and considerations may in fact have everything to do with how the law actually works. Cohen points out that our conception of law as theorems and logic makes “a legal argument irrefutable by a moral principle or by any empirical fact”. But the reality is that dressed in the trappings of logic and doctrine one may arrive at the same guttural, morally driven outcome. The legal system permits the moral outcome but demands that it is arrived at through the charade of objectivity and logic.

The legal idealism of seeing the law as aloof from the value judgments, narratives and emotions that accompany indoctrinated moral beliefs is an illusion. As unpleasant as the notion might be to Holmes, the other major force at work in ancient and modern jurisprudence is morality itself. The law could easily be described as humanity’s codified morality and nothing more. The law’s construction is as arbitrary, judgmental and value driven as the morality that influences it. I would argue that morality and not logic, is front and center in the construction and execution of law.

The case that brought the role of morality in jurisprudence vividly to the forefront for me was the Regina v. Dudley and Stephenson case. Several conceptions of morality were at play in this case. The seafarer community had it’s own utilitarian moral code about what should be done when stranded on a boat in the South Pacific with a young boy, kill and eat him. In the court of public opinion Captain Dudley was not merely doing what was reasonable but what was necessary. He was a hero. But the third value system at play in this case, that changed the legal conception of the necessity defense in the case of murder, was British Victorian era values of propriety and romanticism. Beneath the veneer of civility in the trial of Dudley was the struggle between competing value systems. The conviction and release of Dudley was a moral instruction to British society of the ideal of what British values ought to be. If they had they drawn lots fairly, thereby having a volunteer, there may not have been a murder charge. The killing therefore is not the issue but rather the sense of order and gentlemanliness about “the whole nasty business of cannibalism.”

I’ve thought a lot about this case, I even watched the movie Life of Pi, in an attempt to further explore, why I was so deeply troubled at the idea that the option of “not eating anyone” was considered. I wondered if perhaps I believed that cannibalism should never be an option in any circumstance. Then whilst reading a Wikipedia entry on the Maori people of New Zealand I happened upon this sentence, “Initial contact between Māori and Europeans proved problematic, sometimes fatal, with several accounts of Europeans being cannibalized.”

Upon reading the excerpt about cannibalized European invaders I was morbidly amused. My own value system that takes into account centuries of oppression of the Maori people and the history of genocide and conquest that has been the end result of European contact with the Indigenous peoples of the world, made the idea of European explorers encountering immediate mistrust and hostility from the Maori amusing. Other indigenous peoples, like the Maya of Central America, welcomed the Europeans as guests or Gods only to be conquered by them. I believe I reacted that way because it represented a crude justice to me. Perhaps not even justice but vengeance. Ultimately I did not wish to delve further into why I had two competing judgments about cannibalism, but it helped me confront the idea that perhaps an investment in a legal education is not an investment in developing logical analysis to pursue logical and reasonable ends, but rather learning the language of logic to navigate the dominant system of morality that we call Modern American Jurisprudence.

FIRST DRAFT OF SECOND PAPER: The Rights of Non-Citizens

The Rights of Non-Citizens

-- By ElizabethEncinas - 11 Apr 2013

The sovereign state confers rights and rights cannot exist without the power of the nation-state. This is the underlying assumption of the Western conception of the nation-state system and legitimate power since the Treaty of Westphalia.

The modus operandi within and especially beyond the geopolitical borders of the United States, is that non-citizens have no rights. Indeed the interpretation of the Constitution has often fallen on the side of unveiled hostility to non-citizens regardless of their status as enemy combatants or civilians.Reading the constitution through a textualist lens reveals that there are clear distinctions between the rights and privileges of citizens and the basic rights of persons. Note the language of the 5th Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Compare this with the language of the Article II:

“ No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”

The clear differentiation of citizen vs. person in the constitution carries the implication that the Constitution confers the basic right of due process to all persons within the jurisdiction of the United States of America.

In Boumediene v. Bush (2007) this distinction was clarified when a Bosnian detainee at the U.S. base in Guantanamo, Cuba filed a petition for a writ of habeas corpus alleging violation of the due process clause of the U.S. Constitution. The district court and DC Circuit Court of Appeals ruled in favor of the government and in deference to the Military Commissions Act of 2006 but the Supreme Court overturned the decision in Rasul v. Bush. The Supreme Court decided that the MCA strips federal courts of jurisdiction over habeas corpus filed by foreign citizens detained at Gitmo and that the MCA is a violation of the Suspension Clause. Based on their interpretation of the constitution, detainees are entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and also under the Geneva Conventions.

Boumediene represented a legislative triumph for the rights of non-citizens but unfortunately it did not extend to the real world. There are still foreign detainees languishing in indefinite detention at Gitmo without access to legal counsel or due process. This is an illustration of the law being a “weak social force” and highlights the impotence of the Supreme Court to make a meaningful impact in matters of rights enforcement.

The violation of non-U. S citizen’s human rights in the U.S are well documented and systemic. A frequent violation is the deportation of lawful permanent residents for minor offenses. Many of these people have never lived in their country of origin and are unceremoniously deported to places they have no ties to. For those who have committed serious criminal offenses, the process of deportation leaves the country of origin with little warning or information on the person being returned and often there’s no formalized process to reintegrate the deportees to their home country.

Regarding drone strikes, the Executive has taken it upon itself to be the judge, juror and executioner of people….INCOMPLETE…

Section I

Subsection A

Subsub 1

Subsection B

Subsub 1

Subsub 2

Section II

Subsection A

Subsection B

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, ElizabethEncinas
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.