Abstract This paper reviews Articles 35 and 20 of New York's Penal Law. The paper applies these two articles to the case of Popye and Olive Oyl. According to the paper, Popye tries to defend Olive Oyl's honor by trying to beat up Bluto, who gets the upper hand. The paper goes on to say that Olive Oyl then kills Bluto in order to save Popye's life.
With this in mind, this paper will answer various related questions in an effort to better understand these laws and how they apply in theoretical, and actual cases.
Outline:
Abstract/Scenario
Olive's Most Serious Crimes from the Viewpoint of a Juror
Availability of Justification Defense Under Article 35 of New York Penal Law Implications Under Article 20 of New York Penal Law Legal Precedence
Summary
From the Paper "Preceding all of the actions that began with Popeye and Bluto's physical fight and climaxing in the death of Bluto at the hands of Olive, under Code 20, lies the Duty of Retreat, which holds that when there was a possibility for a verbal argument to escalate into physical fight, Popeye had the obligation to remove himself from the situation, as did Olive. When neither elected to do so, however, there was a violation of the New York Penal Code, leading to the consideration of their guilt or innocence."
Abstract This paper examines two of the general theories of law - legal naturalism and legal positivism, both of which have had an enormous influence on law throughout history. The first part of the paper looks at natural law which describes those diverse theories of law that do not accept human law as true law and hold that a particular "something other than the positive law is the true law". The second section examines legal positivism where one of several general theoretical traditions is based on the belief that the source of knowledge lies in experience, not in reason, nor in mind.
From the Paper "A good example of the usefulness of classical legal naturalism can be seen in the rise of commercial law in the Middle Ages in Europe. As Glendon, Gordon, and Carozza point out, the rise of commercial law took place when Roman civil law provided no adequate coverage of new problems that arose as trade "emerged from the localism and relative economic stagnation of the Middle Ages" in the form of international banking, expanded maritime trade, and rising commercial centers."
Abstract Legal positivism contends that laws are formulated based on the social system of the time and the sources that the social system gives authority to form legal decisions. These sources may be in the form of a constitution, amendments, judicial decisions or state legislation, for example. The belief that legal decisions are based on justice is not the foundation of law in positivism; yet, it is based on what has previously been determined, or posited in the social order. This paper discusses the American political system and contends that the court system of the United States consistently determines law in relation to the American political system based on previous judicial decisions that form the basis of the decisions of the justices.
Abstract This paper emphasizes the strengths and weaknesses of this particle legal article. It shows that this article is a good resource in the field of law.
Table of Contents
Summary
Purpose of law Origin of law Difference between common and civil laws Difference between federal and state courts systems
Weaknesses
Vague generalizations
Lack of descriptive examples
Divergence from theme
Strengths
Useful subheadings
Emphasis of key terms
Detailed definitions
From the Paper "The United States currently operates under a common law system of justice. Students entering into this field of common law need a basic understanding of law in order to excel in law school. Many articles are written with the intention of teaching these basics of law. One example is Law School Basics: A Preview of Law School and Legal Reasoning, written by David Hricik. A summary and an evaluation of an article selected from this book, titled ?The American Legal System,? prove that this article is a valuable resource in the field of law."
This essay illustrates that the separation of law and morality is both possible and impossible, depending on how one defines the phrase "separation of law and morality".
Abstract The essay explores the legal positivist separation thesis. It approaches the question of whether it is possible to separate law and morality from two aspects- first, the content of the law and secondly, the judicial decision maing process. The writer makes reference to the policy of removing part-Aboriginal children from their families and communities, and placing them in special purpose institutions to support his argument.
From the Paper "It has been described as ;arguably the most tragic and shameful chapter in Australia";s history.; From the late nineteenth century to the late 1960's, Australian governments carried out the policy of removing part-Aboriginal children from their families and communities, placing them in special purpose institutions. Often, these removals were carried out by force. The purpose of this removal policy was to assimilate the part-Aboriginals with the white community as the full-blooded Aboriginals were believed to be a doomed race in the sense that they would die out. A large number of the children suffered physical and emotional mistreatment following the removal from their families. The children who were removed under this policy came to be known as ";the stolen generation" This sets the backdrop against which I will discuss whether it is possible to separate law and morality with respect to the Australian court"s law making power.4 The separation of law and morality is the foundation of legal positivism. Positivists often criticize natural law theorists for blurring the line between law and morals. This essay aims, by examining three stolen generation cases, to illustrate that the separation of law and morality is both possible and impossible, depending on how one defines the phrase ";separation of law and morality."
Abstract Development of the roles of the English judiciary and the legislature. Includes observations of the impact of the Human Rights Act and subsequent loss of sovereignty to Strasbourg. Full dissection of the relationship between statute and the Common Law and the part that morality/justice should play in the law courts. Theoretical questions from legal theoreticians such as Dworkin and Hart discussed.
From the Paper "Answering this question involves discussing: what other forms of law (apart from statutory text) judges should refer to; which form of law takes precedence; how a judge should interpret a statute, especially if it is unclear or ambiguous; and what he is to do if he cannot operate within the bounds of existing statutory texts. These issues induce us to look at the use and scope of a judge's discretion. A consideration of the use of the word MUST is also needed. Must a judge operate in a certain way? Or are there merely guidelines as to how he should operate?"
Abstract In this article, the writer discusses that the laws of ancient Rome gave way to the beginning of the law as we know it today. Roman law evolved law and gave way to both unwritten "natural law" and most importantly written law. The writer notes that written law made each law known and so it gave way to the idea of equality for all. The writer points out that the Romans were one of the first governments to actually have written law which helped to govern the people because they could prosecute everyone since each person was required to know the law and go by it. Without written law, our society would be one in chaos. The writer concludes that Rome's history of law through the centuries gave way to law as we know it today and played a very important role in our history.
From the Paper "This law was based on customs and applied only to Roman citizens. Since there were more than just Roman citizens in Rome, a set of laws were put in place titled jus gentium or law of the nations. These laws were set in place to govern both Roman citizens and foreigners. This set of laws would govern even magistrates and was a better alternative to jus civil. Generally, Roman had treaties with foreign states that would protect foreigners who ventured into Rome. For those foreigners whose state did not have a treaty with Rome, jus gentium would protect them as well. These laws would consist of three elements. The first would apply to an existing mercantile law and would be used by traders. The second part of the law would govern the Roman citizens and foreigners collectively and the third part of the law said that the magistrate would use his definition of what was fair and just."
Abstract This paper is a detailed discussion of Islamic criminal law, its sources, its application, and its conflict with international law and human rights. The author examines both primary and secondary sources of Islamic law, and describes Hudud, Tazir and Qesas crime and punishment. The paper also focuses on the historical background of Muslim law.
From the paper:
?Islam means "submission" or "surrender" to the will of Allah. For the more than one billion Muslims of the world, this means submission to a comprehensive code of law governing every arena of life: social, political, economic, and religious. In Islam there is no separation of church and state, no distinction between religion and politics; Government, law, and religion are unified. Some would argue that Islamic law is not fully practiced in any part of the Islamic world. While this may be true, twenty-three nations have either declared Islam to be the state religion or declared the religious writings of Islam to be the principal source of law.?
Abstract This paper discusses the need for the decriminalization or legalization of prostitution in the United States for the benefit of both sex workers and average citizens. It provides an analysis of legal prostitution as compared to illegal prostitution and the concept of privacy rights in regards to the sale of one's own body. It also discusses the impact of religion on the legislative process.
From the Paper "The issue of prostitution in the United States is one that has been constantly debated throughout the years. Those who wish prostitution to remain illegal claim that prostitution is harmful to society both morally and physically. Supporters of decriminalization and legalization, on the other hand, feel that prostitution is a harmless private act or a "victimless crime." While matters of sexuality will always be debated and are deep personal choices of all individuals, the benefits of doing away with the archaic prohibition of "the world's oldest profession" are clear. When one analyzes the issue from a moral standpoint, the argument comes down to the common goal of any system of ethics, which is a society in which individuals do the greatest good for themselves and others in any manner of their choosing so long as they do not harm any others. One must ask then, which system provides the greatest good while doing the least harm? The system of prohibition in which a holier-than-thou attitude creates second-class citizens, ignores the problems of prostitution altogether (until said problems affect "normal" citizens), and denies individuals a way to earn a living, or the system of legalization which gives dignity to sex workers, gives them freedom and resources to practice their business in the safest and healthiest ways possible, and participate in a tradition that has been practiced in private since the earliest times of civilization? Clearly, the legalization of prostitution would be an action of great moral value in that it would provide sex workers with the freedom to control their own bodies, achieve legal equality with the rest of society, access healthcare and legal services as a normal American citizen, and receive the same acceptance of any other human being in functioning society."
Abstract This paper discusses the role of the Australian police force and its power to operate within the law. The paper reports that Police officers, under the 'Police Powers and Responsibilities Act 2000', have become public officials. The paper further reports a rise in the number of people seeking assistance with public nuisance offenses, which are mostly are based on trivial factual scenarios. The paper goes on to explain that these offenses are arising not because of complaints from other citizens, but because the person's conduct is being interpreted by police as 'likely to interfere' with other people's enjoyment of a public space.
Outline:
Police Control and Power as a Subject of Controversy
Other Nations Struggle with the Problem of Broadened Police Power
How are the Laws Enforced?
Conclusion
From the Paper "In other lands, the controversy over police powers has come up from time to time. Sometimes the public is quick to set matters straight and put only reasonable powers into the hands of the police. In most nations, police powers include licensing, inspection, zoning, safety regulations (which cover a lot of territory), quarantines, and working conditions as well as law enforcement under the realm of police enforcement. In short, police powers are the basis of a host of state regulatory statutes. "
"In the United States, citizens take a dim view of unbridled police powers. They were quite condemnatory of Samuel A. Alito, a young U.S. President Ronald Reagan administration lawyer, and Supreme Court nominee, who took an expansive view of government law-enforcement powers in many cases where he was called upon to balance the prerogatives of police and prosecutors with the rights of individuals, according to 400 pages of documents released in November of 2005 by the U.S. Justice Department. For instance, while working in the Office of Legal Counsel from 1985 to 1987, Alito wrote an opinion allowing the Internal Revenue Service to secretly record conversations with taxpayers who were under investigation. "
Abstract This paper shall compare the philosophies found in the naturalist perspective against those of the positivist theorist philosophies. This paper shall achieve this through focusing primarily on the beliefs of the philosophers St. Thomas Aquinas, Ronald Dworkin and H.L.A. Hart.
Abstract This paper looks at how Australian law is very closely linked with legal positivism, since it revolves around the concept of power. It explains that the sovereign order is treated as the final word, which cannot be altered or amended. While the same is the case in the United States, the writer points out that there is some flexibility towards modern interpretations of law. The United States gives its judiciary enough freedom to interpret law according to the circumstances. The same is, however, missing from the Australian legal system where modern interpretations are often met with disapproval. It concludes that this is the essential difference between legal systems of the two countries, a difference that has turned Australian law into a more rigid and positivistic form of law.
From the Paper "A law must be resistant to change for that is the whole purpose of implementing laws. However they must also be flexible enough to allow modern interpretation, which is unfortunately not the case in Australia and this, is what makes Australian constitutional law positivist in nature. In other words, when a law is so rigid that it cannot allow modern interpretation and fails to keep pace with changing times, it is said to be positivistic in nature. In such laws, the interpretation is rigidly limited and the original law cannot be molded to suit modern conditions and circumstances. While then United States constitutional law is also highly resistant to change, it is nonetheless flexible enough to allow Supreme and High Courts to seek modern interpretation. However that is not the case in Australia where constitutional law is the final word of authority and to allow the law to keep pace with changing times is seen as a threat to the constitution. A very apt example of this kind of rigidity of law can be seen in Bulun Bulun case of 1999.
In this case, the copyright Law of Australia was under consideration and it was found that the rigid interpretation of the law was closely connected with legal positivism. The painter John Bulun sought Court's help in combining customary law with the Copyright Act. Mr. Bulun Bulun wanted one of his paintings "Magpie Geese and Water Lilies at the Waterhole", to be seen as a work of co-authorship. He wanted his entire community to be the owner of this property since it was more in line with his customs and cultural beliefs.
Judge Von Doussa however refused to combine customary law with Copyright Law and decided to stay with strict interpretation of the law thus taking a positivistic approach as Bowrey (2001) explains: ?It is difficult to ascertain whether or not von Doussa grasped the cultural implications that flow from his endorsement of these precedents about joint authorship. At key points in the decision closure to consideration of the indigenous point of view was achieved by using legal positivist interpretative practice. He identified the appropriate legal rule concerning joint authorship without reference to any discourse about the meaning of the terminology. Copyright law is "entirely a creature of statute"."
Abstract This paper serves as an evaluative essay that advocates decriminalizing marijuana use and possession. The writer discusses such legalization of marijuana from the utility, virtue and justice perspectives. The writer examines the state versus the individual in this regard. The costs involved in prohibiting marijuana are also explored in this article.
From the Paper "British philosopher, John Stuart Mill proclaimed more than a century and a half ago that the state has no right interfering in individual behavior that might harm the individual, but bring no harm to others. Over himself over his own body and mind, the individual is sovereign. Despite Mill's liberal view, the conservative approach to marijuana control, disregards such philosophy spending billions of dollars per year to enforce the prohibition of marijuana. Such an approach causes high levels of economic and social costs that are ... "
Tags: pot, cannabis, John Stuart Mill, Jimmy Carter, law enforcement, individual liberty, Libertarian, philosophy
Abstract This paper presents an examination of how natural law impacts the American legal system. The paper provides a general overview of natural law and then explores how natural law applies to the current legal system in the United States. It argues that the natural law helps to drive the current system and describes how this is true.
Table of Contents:
Introduction
Natural Law Natural Law and the American Legal System
Conclusion
From the Paper "Natural law in its most simple form, is the unwritten law of mankind. It is a concept of principle morals and values that are, or at least should be shared by all of mankind because of the central goodness of their concept. (Horowitz, 2000)"
"Natural law is therefore distinguished from -- and provides a standard for -- positive law, the formal legal enactments of a particular society (Dolhenty, 2004)."
One example of this is the belief that killing is wrong. There are few humans or societies on earth that would disagree with the basic tenet that the murder of another person without reason is wrong. (Green, 2005) It takes a loved one from a family, it removes financial support from children, it takes someone out of society that may have moved on to contribute great things and if one is Christian, then the act of murder is something that God does not allow. It is not up to man to determine who lives or dies, it is God's choice and to kill is to try and play God."
Abstract In an increasingly secular world natural law has frequently fallen under intense scrutiny. This paper, however, argues that natural law is superior to legal positivism and stands up well to three common criticism leveled against it; first that natural law is at least as subjective as any statute passed by legal positivists, second that natural law can impress a certain more absolutism and dogmatism upon the crafting and interpretation of the law which is inherently unhealthy in evolving societies, and thirdly that natural law is predicated upon faith and not upon reason as is the positive law tradition.
