The Case of Troy Davis

[kandrathe]

Does the ocean recognize this right? In a snowstorm in the Canadian Rockies in winter? Even if you've gotten yourself lost in a desert? Sorry, but I just see this as intellectual crap dreamed up by a bunch of well fed and well coddled effetes.

Well, yes, philosophers and some theologians extending back to the time of Socrates and Aristotle (Nicomachean Ethics) to be exact. I know you know most of this, but I'll summarize quickly for the observers.

Around 1215, Runnymede, at the time of the writing of the Magna Carta, our western society was wrestling with King John over his divine power which resulted in a rebellion by the Barony and one of the most important first social contracts signifying the consent of the governed.

Perhaps influence by this profound event, the Greco-Roman philosophy of natural law or rights was studied and in essence resurrected by St. Thomas Aquinas (published c. 1274) in describing the notions of "Common Law" within a framework of morality and ethics. He distinctly clarified what he described as divine law, as opposed to secular law. In effect, it was Aquinas that entertained the notion of a separation between State matters and secular matters. He wrote, "Both powers originate in God. Therefore the secular power is subordinate to the spiritual power in matters that concern the salvation of souls. In matters that concern more the civil common good, a person is obliged to obey the secular rather than the spiritual power." It is an interesting side note that Aquinas was also condemned by the church (1277) for his work challenging the absolute authority of the church, and his work did not achieve full acceptance for 600 years (1874).

In Leviathan, 1651, Hobbes writes, "I show in the first place that the state of men without civil society (which state may be called the state of nature) is nothing but a war of all against all; and that in that war, all have a right to all things. " and "The natural state of men, before they were joined in society, was a war, and not simply, but a war of all against all." This then leads into the concept of a social contract (Rousseau, Hobbes, Locke), where we surrender our warring nature in exchange for certain guaranteed liberties. A society that violates this contract would thus revert back to a warring state.

Some of Hobbes 19 identified natural laws are;

1. that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war<>
   
2. that a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself<>
   
3. that men perform their covenants made. ...when a covenant is made, then to break it is unjust and the definition of injustice is no other than the not performance of covenant<>
   
4. that a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will.<>
   
5. that every man strive to accommodate himself to the rest.<>
   
6. that upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.<>
   
7. that in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.<>
   
8. that no man by deed, word, countenance, or gesture, declare hatred or contempt of another<>
   
9. that every man acknowledge another for his equal by nature<>
   
10. that at the entrance into the conditions of peace, no man require to reserve to himself any right, which he is not content should be reserved to every one of the rest.<>
    
11. if a man be trusted to judge between man and man, that he deal equally between them<>
    
12. that such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right.<>
    
13. that those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot.<>
    
14. that all men that mediate peace be allowed safe conduct.<>
    
15. that they that are at controversy submit their right to the judgment of an arbitrator<>
    
16. that no man is a fit arbitrator in his own cause<>
    [st]Then Hegel says, "The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them." The sum of these philosophies, then bring us to this idea of inalienable rights which are in essence the right to life, liberty, and the protection/pursuit of property.

    People who have had little to no experience in the so called natural world dream up things like 'universal rights' and 'noble savages'. Those who've experienced the real natural world know that it is much more about fang and claw, that "sometimes you eat the bear and sometimes the bear eats you." It is only because the line between survival and death moved well into the comfort zone of surplus and leisure that such nonsensical ideas could be entertained. For centuries, in the Western world, the only times people have had to really face the demands of survival have been during war.

    So, perhaps these men were effete, and perhaps too weak to defend themselves from brutes, but I think from their thoughts we've derived one of the best forms of social contract yet, at least until the lawyers in DC muck it up for us.

    I find it telling that neither Locke nor Jefferson ever actually fought for their principles, and those that did fight (<strike>Madison</strike> Hamilton (sorry, bf) comes to mind) mostly have very different opinions about 'rights' and the 'perfectibility of the common man.' It is easier for a person who's never had to pay for his freedoms to think they are free than it is for someone who's paid at least a little. Probably why there are damned few bleeding heart liberals in the military.

    We've spoken about this before, but I think it would be beneficial for pre-adults and immigrants to earn their citizenship by performing 2 or 3 years of service for their nation, with no exceptions.

    Yes, but it is a wrong idea. The historical fact is that for any 'right' and for any group, there was a time before which that group did not have the right and after which it did. You can assume that the rights have an absolute existence and that the strong finally stopped depriving the weak of these rights or you can assume that these rights only came into existence when the strong ceded them to the weak. Either way, the underlying fact is that the strong controlled the rights. Historically, even when a weak group seems to gain rights for itself, you'll find that it was strong leaders in that group, willing to fight for those rights, in conjunction with sympathizers among the 'strong', that obtained those rights.

    I have to disagree. It is clear, that even if you are enslaved, it would be considered just to seek your own freedom, whether you attempt to seek your freedom or not. Also just then would be to struggle to keep your freedom from those that would seek to enslave you.

    Should a carnivore be brought to justice? And why introduce cannibals into the discussion? Also, except through an exaggerated sense of self importance, how are humans outside of the animal kingdom?

    I think in some cases, they probably are not. For example, excessive cruelty, or the intentional murder of another persons animal. These are treated as criminal offenses now, rather than merely property crimes.

    There is. Passage of the bar exam and reasonable performance. And, if insufficient defense is claimed, it is reviewed. The fact that the defendant lost isn't prima facia evidence that the defense attorney was incompetent. They are. Depending on the circumstances, this could be through either the appeal process or the ethics review boards. Although if the malpractice was in favor of the defense, then there's little to appeal. "We cheated and still lost" is not a basis for verdict reversal, I should hope and think.

    My examination of capital cases in writing here, showed me that for a large portion of those cases that delivered a guilty verdict, the defense was clearly substandard. Substandard in that the defense was incompetent in having experience with capital cases, being intoxicated, having prepared no defense, calling no witnesses, and poor cross examination of the prosecution. They are not what you nor I would call "a fair trial" by any stretch of the imagination.

    Witnesses don't cross examine, witness testify. If the prosecution does introduce expert witnesses (other than the usual forensic experts, if applicable) the law does require that the state supply funds for rebuttal witnesses if the defender cannot afford them. This is extremely rare. It is much more likely that the defense would introduce controversial expert witnesses to support, for instance, the Twinky defense.

    Well, actually I have to disagree. There are usually some forensics, psychological evaluations, private investigators to also interrogate any witnesses, etc. The prosecutor has the advantage of a state apparatus (police, labs, etc) funded by the people at their disposal, while the defense has to either rely on the state's evidence or pay to discover their own.

    And if the defendant is OJ, should he kick in some quantity for his prosecution? BTW, OJ is a prime example of what is wrong with the death penalty as it presently applies.

    We are primarily talking about people who cannot afford to pay for their own defense. It actually might be more fair to restrict the amount of money that a rich person can devote to their own defense, similar to why it makes us queasy to allow politicians to spend an unlimited amount of their own money. Eventually, given enough time, they will win.
    
    Edit: some typos.