[lit-ideas] Re: How Capital "Capital"?
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Wed, 2 Mar 2016 07:33:04 +0000 (UTC)
Among the many things this post indicates is (yet again) that "conceptual
analysis" can hardly explain differences in judicial analysis, explanation and
decision-making. I have argued before that "problem-solving" is a much better
way to understand these processes (both in its explanatory power and factual
accuracy).
Much of the quality of judicial decision-making depends on the quality of the
characterisation of the problem: a while back I used an example of a old case,
Pilcher, to illustrate at some length how one case can give rise to multiple
characterisations of the issue at stake or "problem-situation".
Not having read the judgments, I nevertheless think this is indicated clearly
enough by the following grouping, which characterises these two decisions as of
a piece (with allowing the accused to confront their accusers).
In multiple cases, Scalia wrote against laws that allowed alleged victims
of child abuse to testify behind screens or by closed-circuit television.
In a 2009 case, Scalia wrote the majority opinion in Melendez-Diaz v.
Massachusetts, holding that defendants must have the opportunity to confront
lab
technicians in drug cases; a certificate of analysis is not enough to
prove a substance was drugs.>
These cases are very different because the problem-situation is very different.
In the first case, there is a "countervailing principle" of protecting the
complainant from unwarranted attack that applies to victims of crime in a way
that it does not apply to scientific "technicians" who are not victims of the
crime.
Perhaps we should start by saying it is a somewhat crude characterisation that
the accused be allowed to "confront" their accusers: any civilised system of
law must have restrictions on this "confrontation" e.g. should the accused be
allowed to go up his accusers in court and eye-ball them after pressing their
face close to the complainant? In English law, restrictions have been brought
in where there are countervailing principles or considerations - the
complainant's sexual history in rape cases, for example (to prevent the trial
turning into a trashing of her prior sexual conduct); but perhaps the best
example is the use of informers, which is very frequent in criminal cases but
where generally the accused has no right to know of his "informers" never mind
confront them.
The point of the right to "confront" is not to promote "confrontation" for its
own sake but to ensure the accused has a fair trial, but the right to a fair
trial is not absolute in the sense that the system bends only in whatever
direction would most ensure fairness for the accused - for fairness is a
two-way street, and fairness to victims and complainants is the other side of
the street here.
These things can be debated in detail as to their pros and cons but clearly the
two situations above are very different in that protecting "technicians" from
cross-examination on their work is not a matter of fairness to "technicians"
that should weigh with the courts, whereas there is a strong argument of
fairness and of public interest that certain categories of vulnerable
complainant receive protection from the ordeal of being "confronted" by their
alleged abuser - even if this might somewhat increase the risk of wrongful
conviction.
The above only scratches the surface of the detailed debate to be had about the
specifics of certain procedures and their pros and cons. What tends to lower
the standard of judicial analysis are attempts to read off "solutions" from
crude characterisations of the problem-situation - such as that an accused must
have a right to "confront" his accusers which is a much cruder formulation than
saying an accused must be given the opportunity to properly defend themselves
against accusations made.
DL
On Wednesday, 2 March 2016, 1:32, "dmarc-noreply@xxxxxxxxxxxxx"
<dmarc-noreply@xxxxxxxxxxxxx> wrote:
In a message dated 3/1/2016 1:36:36 P.M. Eastern Standard Time,
lawrencehelm@xxxxxxxxxxxxxx writes in "Executions":
Huizinga:
"For horrible crimes the law invented atrocious punishments."
Helm comments:
'In the meantime we have such lawyer-created expressions as
"cruel and unusual punishment" prohibiting that sort of thing.'
Interesting. Huizinga is referring to the LAW (not a specificic, mentioned
lawyer) inventing 'attrocious punismemt'. But Helm states that 'in the
meantime we have such lawyer-created expressions as "cruel and unusual
punishment" prohibiting that sort of thing" -- where the 'lawyer' and not
Huizinga's law come into view.
"If some great philosopher convinced a majority of society that capital
punishment was valuable and ought to be reinstated."
I don't think it's up to a philosopher, great or small, but a judge?
I'm not sure about UK (but there's a film with Miranda Richardso and Rupert
Everett on this), but Juge Scalia, believed that the death penalty is
constitutional.
He dissented in decisions that hold the death penalty unconstitutional as
applied to certain groups, such as those who were under the age of 18 at the
time of offense.
In Thompson v. Oklahoma Scalia dissented from the Court's ruling that the
death penalty could not be applied to those aged 15 at the time of the
offense, and the following year authored the Court's opinion in Stanford v.
Kentucky sustaining the death penalty for those who killed at age 16.
However, in 2005, the Court overturned Stanford in Roper v. Simmons and
Scalia again dissented, mocking the majority's claims that a national
consensus had emerged against the execution of those who killed while
underage, and
noted that less than half of the states that permitted the death penalty
prohibited it for underage killers.
Scalia castigated the majority for including in their count states that
had abolished the death penalty entirely, stating that doing so was "rather
like including old-order Amishmen in a consumer-preference poll on the
electric car.
"Of course they don't like it, but that sheds no light whatever on the
point at issue."
In 2002, in Atkins v. Virginia, the Court ruled the death penalty
unconstitutional as applied to the mentally retarded.
Scalia dissented, stating that it would not have been considered cruel or
unusual to execute the mildly mentally retarded at the time of the 1791
adoption of the Bill of Rights, and that the Court had failed to show that a
national consensus had formed against the practice.
Scalia strongly disfavored the Court's ruling in Miranda v. Arizona, which
held that a confession by an arrested suspect who had not been advised of
his rights was inadmissible in court, and voted to overrule Miranda in the
2000 case of Dickerson v. United States, but was in a minority of two with
Justice Clarence Thomas.
Calling the Miranda decision a "milestone of judicial overreaching", Scalia
stated that the Court should not fear to correct its mistakes.
Although, in many areas, Scalia's approach was unfavorable to criminal
defendants, he took the side of defendants in matters involving the
Confrontation Clause of the Sixth Amendment, which guarantees defendants the
right to
confront their accusers.
In multiple cases, Scalia wrote against laws that allowed alleged victims
of child abuse to testify behind screens or by closed-circuit television.
In a 2009 case, Scalia wrote the majority opinion in Melendez-Diaz v.
Massachusetts, holding that defendants must have the opportunity to confront
lab
technicians in drug cases; a certificate of analysis is not enough to
prove a substance was drugs.
Scalia maintained that every element of an offense that helps determine
the sentence must be either admitted by the defendant or found by a jury under
the Sixth Amendment's jury guarantee.
In the 2000 case of Apprendi v. New Jersey, Scalia wrote the Court's
majority opinion that struck down a state statute that allowed the trial judge
to increase the sentence if he found the offense was a hate crime.
Scalia found the procedure impermissible because whether it was a hate
crime had not been decided by the jury.
In 2004, he wrote for the Court in Blakely v. Washington, striking down
Washington state's sentencing guidelines on similar grounds.
The dissenters in Blakely foresaw that Scalia would use the case to attack
the federal sentencing guidelines (which he had failed to strike down in
Mistretta), and they proved correct, as Scalia led a five-member majority in
United States v. Booker, which made those guidelines no longer mandatory
for federal judges to follow (they remained advisory).
In the 2001 case of Kyllo v. United States, Scalia wrote the Court's
opinion in a 5–4 decision that cut across ideological lines.
That decision found thermal imaging of a home to be an unreasonable search
under the Fourth Amendment.
The Court struck down a conviction for marijuana manufacture based on a
search warrant issued after such scans were conducted, which showed that the
garage was considerably hotter than the rest of the house because of indoor
growing lights.
Applying that Fourth Amendment prohibition on unreasonable search and
seizure to arrest, Scalia dissented from the Court's 1991 decision in County of
Riverside v. McLaughlin, allowing a 48-hour delay before a person arrested
without a warrant is taken before a magistrate, on the ground that at the
time of the adoption of the Fourth Amendment, an arrested person was to be
taken before a magistrate as quickly as practicable.
In a 1990 First Amendment case, R.A.V. v. St. Paul, Scalia wrote the
Court's opinion striking down a St. Paul, Minnesota, hate speech ordinance in a
prosecution for burning a cross.
Scalia noted, "Let there be no mistake about our belief that burning a
cross in someone's front yard is reprehensible. But St. Paul has sufficient
means at its disposal to prevent such behavior without adding the First
Amendment to the fire."
I know one great philosopher from England, H. P. Grice, but he is silent
about the 'capital punishment', even if he read the tirade in "Philosophy:
the journal of the Royal Society of Philosophy" against the justification of
it.
Capital punishment in Oxford was used since before the creation of the
state of the United KIngdom in 1801 until the practice was abolished in the
20th century.
The last executions in the United Kingdom Iif not Oxford -- although St.
John's, Oxford's college, is so close to the Martyrs Memorial -- were by
hanging.
They took place in 1964, prior to capital punishment being abolished for
murder (This happened in 1965 in Great Britain and in 1973 in Northern
Ireland -- the name of the country is "Great Britain and Northern Ireland" --
it's a conjunctive name in nature).
Although unused, the death penalty did remain a legally defined punishment
for certain offences such as treason.
But it was, "for good or bad," as Grice otiosely put it, completely
abolished in 1998.
In 2004 the 13th Protocol to the European Convention on Human Rights became
binding on the United Kingdom, and it prohibits the restoration of the
death penalty "as long as the UK is a party to the Convention", as a
Ceteris-Paribus fanatic like H. L. A. Hart would put it.
So you never know, which is Popper's motto (vide Bartley III, "(i)
Everything is controversial, including (i)").
Cheers,
Speranza
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