Two cases of self-defense

I’ve been in my native Oklahoma last weekend to see my new granddaughter and to be there for her baptism.  Localists have a point:  There really are regional differences.  It’s nice to be back in my old stomping grounds.

It’s interesting to read the local newspapers.  You may have heard about the 18 year old single mother in Oklahoma who greeted the man who broke into her mobile home by killing him with a blast from her 12-gauge shotgun.  She’s receiving all kinds of acclaim.  That’s the Oklahoma spirit.

But that has brought up a case from a few years ago, with people here discussing whether it is similar or different.   A robber was holding up a pharmacy in Oklahoma City.  A worker shot him.  The thief was down but still alive.  So the worker re-loaded and finished him off.  Whereupon he was tried and convicted of first-degree murder.

I can’t believe an Oklahoma jury convicted him!  Do you see a line being crossed?  Or should criminals face a special jeopardy when their victims fight back?

For details see ScissorTales: No comparison between killings | NewsOK.com.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • George

    No line is being crossed; criminals should expect to be shot at when they decide to be criminals. Things like this are just ways of the state passively legislating against being “mean.”

  • George

    No line is being crossed; criminals should expect to be shot at when they decide to be criminals. Things like this are just ways of the state passively legislating against being “mean.”

  • Phw

    No line was crossed if the robber was still threatening to shoot. A line was crossed if the wounded perp was not in a position to cause harm. Military ROE says you don’t shoot the wounded. Same principle applies.

  • Phw

    No line was crossed if the robber was still threatening to shoot. A line was crossed if the wounded perp was not in a position to cause harm. Military ROE says you don’t shoot the wounded. Same principle applies.

  • Dan Kempin

    The goal of self defense is not to kill. If the person reloaded and killed a man who was down and no threat, that is not self defense.

    Still, I think a first degree murder charge is not justice. Consideration should be given for the trauma and adrenaline, and the fact that the “victim” initiated the robbery. Perhaps manslaughter.

    Then again, I only know the bare facts.

  • Dan Kempin

    The goal of self defense is not to kill. If the person reloaded and killed a man who was down and no threat, that is not self defense.

    Still, I think a first degree murder charge is not justice. Consideration should be given for the trauma and adrenaline, and the fact that the “victim” initiated the robbery. Perhaps manslaughter.

    Then again, I only know the bare facts.

  • http://abitibibob.hubpages.com/ Bob Hunter

    If the criminal was no longer a threat, it was murder and they were right to convict him.

  • http://abitibibob.hubpages.com/ Bob Hunter

    If the criminal was no longer a threat, it was murder and they were right to convict him.

  • Joe

    Bob – but of what degree? First degree intentional homicide or something less? The legal issue is did the shooter believe his life or property was in danger and was the response appropriate given his belief?

    I don’t pretend to know all of the facts of that case (like how long did it take to reload? I can reload my .45 in less than 2 seconds or was the criminal reaching for a weapon).

    In matters of self-defense, I think society needs to give the benefit of the doubt to the person defending himself. Given the situation he was placed in by the criminal, he is most likely not going to make a perfect decision.

  • Joe

    Bob – but of what degree? First degree intentional homicide or something less? The legal issue is did the shooter believe his life or property was in danger and was the response appropriate given his belief?

    I don’t pretend to know all of the facts of that case (like how long did it take to reload? I can reload my .45 in less than 2 seconds or was the criminal reaching for a weapon).

    In matters of self-defense, I think society needs to give the benefit of the doubt to the person defending himself. Given the situation he was placed in by the criminal, he is most likely not going to make a perfect decision.

  • SKPeterson

    Unfortunately the worker was not wearing a badge; then he’d be getting an award and/or promotion after a brief period of administrative leave with pay. But, since he is a civilian, they get a 1st degree murder charge and conviction. As Dan notes, from the bare facts, the person appears to have acted outside the boundaries of the law; the issue is the severity of the charge and the lack of universal applicability of the law to everyone equally.

  • SKPeterson

    Unfortunately the worker was not wearing a badge; then he’d be getting an award and/or promotion after a brief period of administrative leave with pay. But, since he is a civilian, they get a 1st degree murder charge and conviction. As Dan notes, from the bare facts, the person appears to have acted outside the boundaries of the law; the issue is the severity of the charge and the lack of universal applicability of the law to everyone equally.

  • Tom Hering

    According to the article, after the pharmacist shot the robber, he “calmly found another weapon and ammunition” and then finished the robber off.

  • Tom Hering

    According to the article, after the pharmacist shot the robber, he “calmly found another weapon and ammunition” and then finished the robber off.

  • Micheal B.

    I’m pretty much of the mind that if a person decides to rob a store or break into somebody’s house, they pretty much check their rights at the door.

  • Micheal B.

    I’m pretty much of the mind that if a person decides to rob a store or break into somebody’s house, they pretty much check their rights at the door.

  • Tom Hering

    “… they pretty much check their rights at the door.”

    So, if you succeed in incapacitating a robber, it’s okay to tie him up and torture him with power tools. Right? No? Then it’s certainly not okay to go further and execute him.

  • Tom Hering

    “… they pretty much check their rights at the door.”

    So, if you succeed in incapacitating a robber, it’s okay to tie him up and torture him with power tools. Right? No? Then it’s certainly not okay to go further and execute him.

  • Dennis Peskey

    One shot – one kill; no problem. What is needed is training in marksmanship. Semper Fi.
    Pax,
    Dennis

  • Dennis Peskey

    One shot – one kill; no problem. What is needed is training in marksmanship. Semper Fi.
    Pax,
    Dennis

  • Tom Hering

    Dennis @ 10, did you really mean to sign your comment “pax”? Kind of an anti-climax. :-D

  • Tom Hering

    Dennis @ 10, did you really mean to sign your comment “pax”? Kind of an anti-climax. :-D

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    In the pharmacy case, I agree that it isn’t self defense when the target is incapacitated. However, I don’t really think it is first degree either even if he did appear calm. Some people are just calmer than others. The robber surprised the guy and the guy reacted, and then he overreacted, all within the space of a few minutes. I doubt he would have been indicted in a lot of places. Joe Horn was not indicted here in Texas and he was safe in his own house before he went out and shot and killed two burglars. Probably the main thing is the video. If they couldn’t actually see what happened, they would be less likely to convict. It is like the Rodney King video. People flipped out even though King was treated and released later the same day. Meanwhile, in the Texas town of Bellaire, police shot and killed a car thief because he would not stop when they told him to stop. No video of that and no indictment either.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    In the pharmacy case, I agree that it isn’t self defense when the target is incapacitated. However, I don’t really think it is first degree either even if he did appear calm. Some people are just calmer than others. The robber surprised the guy and the guy reacted, and then he overreacted, all within the space of a few minutes. I doubt he would have been indicted in a lot of places. Joe Horn was not indicted here in Texas and he was safe in his own house before he went out and shot and killed two burglars. Probably the main thing is the video. If they couldn’t actually see what happened, they would be less likely to convict. It is like the Rodney King video. People flipped out even though King was treated and released later the same day. Meanwhile, in the Texas town of Bellaire, police shot and killed a car thief because he would not stop when they told him to stop. No video of that and no indictment either.

  • Dennis Peskey

    Tom (#11) If people are going to bear the sword – they should first learn how to use the sword. Shooting in self-defense is not as easy as pulling a trigger – it takes six months to train a combat ready Marine. Any civilian can fully arm themselves with a brief trip to the sporting good store, but being armed does not mean they’re prepared. I firmly believe there are people who deserve to be shot (as was the case of the young mother’s defense). But reloading is not a viable option in the second case, although I can not concur with a first-degree charge. And if you’re unsure of the price of peace, look to the cross; our peace cost Christ his life for us.
    Pax,
    Dennis

  • Dennis Peskey

    Tom (#11) If people are going to bear the sword – they should first learn how to use the sword. Shooting in self-defense is not as easy as pulling a trigger – it takes six months to train a combat ready Marine. Any civilian can fully arm themselves with a brief trip to the sporting good store, but being armed does not mean they’re prepared. I firmly believe there are people who deserve to be shot (as was the case of the young mother’s defense). But reloading is not a viable option in the second case, although I can not concur with a first-degree charge. And if you’re unsure of the price of peace, look to the cross; our peace cost Christ his life for us.
    Pax,
    Dennis

  • Tom Hering

    Wow, Dennis @ 13. That’s quite the conceptual mashup.

  • Tom Hering

    Wow, Dennis @ 13. That’s quite the conceptual mashup.

  • Micheal B.

    “So, if you succeed in incapacitating a robber, it’s okay to tie him up and torture him with power tools. Right? No? Then it’s certainly not okay to go further and execute him.”

    I suppose my comment was somewhat over the top. However, this criminal is threatening people’s lives. If it were the case where the criminal was merely trespassing or stealing, then I would completely agree with you. I think we as a society should expect that deadly force will be used on them, and it should be difficult to convict people who use such deadly force.

  • Micheal B.

    “So, if you succeed in incapacitating a robber, it’s okay to tie him up and torture him with power tools. Right? No? Then it’s certainly not okay to go further and execute him.”

    I suppose my comment was somewhat over the top. However, this criminal is threatening people’s lives. If it were the case where the criminal was merely trespassing or stealing, then I would completely agree with you. I think we as a society should expect that deadly force will be used on them, and it should be difficult to convict people who use such deadly force.

  • DonS

    Here’s a story reporting Ersland’s conviction, which includes the 1:16 video the jury apparently relied on to convict him.

    The bad thing is that, after the initial shooting, Ersland ran out of the store chasing the accomplice who ran away. He walks back into the store, goes behind the counter, gets another gun, walks back out from behind the counter, appears to fire the gun into the fallen robber several times (because the robber is lying against the back wall of the store, you can’t see him, nor ascertain for sure what Ersland is doing, but I assume the later shooting of him was undisputed in court), then goes back behind the counter and picks up the phone.

    Obviously, from the video, it is apparent that Ersland is not in fear for his life when he kills the robber. So, it would seem that a finding that he was not acting in self defense was justified. Why the jury convicted him of first degree murder rather than manslaughter, which was apparently offered as an alternative, is a mystery to me.

  • DonS

    Here’s a story reporting Ersland’s conviction, which includes the 1:16 video the jury apparently relied on to convict him.

    The bad thing is that, after the initial shooting, Ersland ran out of the store chasing the accomplice who ran away. He walks back into the store, goes behind the counter, gets another gun, walks back out from behind the counter, appears to fire the gun into the fallen robber several times (because the robber is lying against the back wall of the store, you can’t see him, nor ascertain for sure what Ersland is doing, but I assume the later shooting of him was undisputed in court), then goes back behind the counter and picks up the phone.

    Obviously, from the video, it is apparent that Ersland is not in fear for his life when he kills the robber. So, it would seem that a finding that he was not acting in self defense was justified. Why the jury convicted him of first degree murder rather than manslaughter, which was apparently offered as an alternative, is a mystery to me.

  • DonS
  • DonS
  • WebMonk

    DonS, as to why the conviction for 1st degree vs manslaughter, there are several possibilities. One is that they thought the manslaughter definition was an incorrect description to describe what had happened.

    I’ve looked up several definitions of manslaughter (trying to stick to the more reputable sites) and all of them have in common the lack of “premeditation” – “in the heat of passion” is a commonly used descriptor. If there is premeditation, then it is no longer manslaughter and becomes (potentially) 1st degree murder.

    In the video, I would have to say there is a definite argument which could be very validly made that there was no “heat of passion” and that the clerk’s actions could very well have been “premeditated”.

    There are lots of other possible factors that could have played in as well. For all I know, the clerk could have stated himself that he had calmed down and decided that he was pissed off at the robber and decided to teach him a lesson for trying to rob his store. (I highly doubt that was actually said – just used for an extreme case)

    But, just based off that video, I can certainly see people deciding that the clerk was long past his “passion” and acting on a thought-out and premeditated set of decisions, and so could have decided his actions were completely outside of the “manslaughter” definition and fully into the “1st degree murder” definition.

  • WebMonk

    DonS, as to why the conviction for 1st degree vs manslaughter, there are several possibilities. One is that they thought the manslaughter definition was an incorrect description to describe what had happened.

    I’ve looked up several definitions of manslaughter (trying to stick to the more reputable sites) and all of them have in common the lack of “premeditation” – “in the heat of passion” is a commonly used descriptor. If there is premeditation, then it is no longer manslaughter and becomes (potentially) 1st degree murder.

    In the video, I would have to say there is a definite argument which could be very validly made that there was no “heat of passion” and that the clerk’s actions could very well have been “premeditated”.

    There are lots of other possible factors that could have played in as well. For all I know, the clerk could have stated himself that he had calmed down and decided that he was pissed off at the robber and decided to teach him a lesson for trying to rob his store. (I highly doubt that was actually said – just used for an extreme case)

    But, just based off that video, I can certainly see people deciding that the clerk was long past his “passion” and acting on a thought-out and premeditated set of decisions, and so could have decided his actions were completely outside of the “manslaughter” definition and fully into the “1st degree murder” definition.

  • DonS

    Webmonk @ 18: Sure, but keep in mind that only 1:16 passes since the guy was surprised by a two-man, armed attack in his store. How can the guy NOT have still been in the heat of passion, fueled by adrenaline, fear, and anger? Premeditation conventionally means that someone plans a murder, or a crime which he should have known could result in murder, and then executes the plan. This guy didn’t do that in a cold and deliberate way, but rather, probably just in the heat of the moment as he returned from chasing the first guy. To get 12 people on the jury to unanimously put that shop owner away for life is amazing to me. And unjust.

  • DonS

    Webmonk @ 18: Sure, but keep in mind that only 1:16 passes since the guy was surprised by a two-man, armed attack in his store. How can the guy NOT have still been in the heat of passion, fueled by adrenaline, fear, and anger? Premeditation conventionally means that someone plans a murder, or a crime which he should have known could result in murder, and then executes the plan. This guy didn’t do that in a cold and deliberate way, but rather, probably just in the heat of the moment as he returned from chasing the first guy. To get 12 people on the jury to unanimously put that shop owner away for life is amazing to me. And unjust.

  • kerner

    All juries receive “jury instructions” on the law before retiring for their verdict. Typically, they take some kind of oath to follow the law in reaching their verdict. Perhaps I am naiive, but I believe that juries generally take their oath more seriously than many of us think.

    Most jurisdictions have a set of pre-drafted jury instructions defining almost all crimes in detail, and defining that jurisdiction’s law of self defense. While we may commonly think of “pre-meditation” as a long process, I will bet that, in Oklahoma, it doesn’t have to be. One by-product of a “law and order” state, is that it often has rules that make it easier for juries to convict. This sometimes has the unexpected result of motivating juries to convict in cases when they might be sympathetic to the defendant for other reasons.

    I don’t have time to find the OK criminal jury instructions (they might not even be on line, Wisconsin’s aren’t), but if the two major statements in them are:

    1) You can’t kill a criminal unless you actually feel threatened by him, and

    2) premiditation does not have to be for any defined period of time,

    and if the evidence (which we do not have in its entirety) was such that the robber was truly incapacited and it was pretty clear that the pharmacist just executed the s o b, the verdict does not surprise me.

    The use of a second gun might have made this easier, because the M E could have been able to say something about how the bullets from gun #1 would have paralysed the robber or something, making shooting him to death with gun #2 more obviously non-defensive. But that’s just a guess on my part. My basic point is that I am not usually a big fan of second guessing juries unless we have a very detailed idea of what the evidence was. The details often explain the surprising verdicts.

  • kerner

    All juries receive “jury instructions” on the law before retiring for their verdict. Typically, they take some kind of oath to follow the law in reaching their verdict. Perhaps I am naiive, but I believe that juries generally take their oath more seriously than many of us think.

    Most jurisdictions have a set of pre-drafted jury instructions defining almost all crimes in detail, and defining that jurisdiction’s law of self defense. While we may commonly think of “pre-meditation” as a long process, I will bet that, in Oklahoma, it doesn’t have to be. One by-product of a “law and order” state, is that it often has rules that make it easier for juries to convict. This sometimes has the unexpected result of motivating juries to convict in cases when they might be sympathetic to the defendant for other reasons.

    I don’t have time to find the OK criminal jury instructions (they might not even be on line, Wisconsin’s aren’t), but if the two major statements in them are:

    1) You can’t kill a criminal unless you actually feel threatened by him, and

    2) premiditation does not have to be for any defined period of time,

    and if the evidence (which we do not have in its entirety) was such that the robber was truly incapacited and it was pretty clear that the pharmacist just executed the s o b, the verdict does not surprise me.

    The use of a second gun might have made this easier, because the M E could have been able to say something about how the bullets from gun #1 would have paralysed the robber or something, making shooting him to death with gun #2 more obviously non-defensive. But that’s just a guess on my part. My basic point is that I am not usually a big fan of second guessing juries unless we have a very detailed idea of what the evidence was. The details often explain the surprising verdicts.

  • WebMonk

    “Planning” isn’t dependent upon time, though that does certainly affect the consideration of whether or not something qualifies for “premeditation”. Again, this is just going off of what I can find online. (though I am trying to draw only from statements in actual decisions)

    District appeals court in FL:
    “Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.
    “This purpose to kill may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.”

    CA Supreme Court:
    “The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.”

    US Court of Appeals:
    “Premeditation means the defendant formed the specific intent to kill the victim for some period of time, however short, before the actual killing.”

    Like I said, from just the video (and there may have been other statements during the case), it certainly seems like his actions could have been made with planning and deliberate decision making, complete with consideration. Time between decision and action doesn’t seem to be the primary issue so much as there was a conscious thought-process deciding to kill.

    Who knows what may have also been said during the court case. Saying “I decided to go get the other gun” could certainly indicate that he had coherent decision making thoughts going on, and was not operating on just impassioned impulses.

    Don’t be so quick to declaim as completely unreasonable the jury’s decisions, the full facts of which you know nothing except the news stories and the video.

  • WebMonk

    “Planning” isn’t dependent upon time, though that does certainly affect the consideration of whether or not something qualifies for “premeditation”. Again, this is just going off of what I can find online. (though I am trying to draw only from statements in actual decisions)

    District appeals court in FL:
    “Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.
    “This purpose to kill may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.”

    CA Supreme Court:
    “The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.”

    US Court of Appeals:
    “Premeditation means the defendant formed the specific intent to kill the victim for some period of time, however short, before the actual killing.”

    Like I said, from just the video (and there may have been other statements during the case), it certainly seems like his actions could have been made with planning and deliberate decision making, complete with consideration. Time between decision and action doesn’t seem to be the primary issue so much as there was a conscious thought-process deciding to kill.

    Who knows what may have also been said during the court case. Saying “I decided to go get the other gun” could certainly indicate that he had coherent decision making thoughts going on, and was not operating on just impassioned impulses.

    Don’t be so quick to declaim as completely unreasonable the jury’s decisions, the full facts of which you know nothing except the news stories and the video.

  • DonS

    Kerner, I am sure you are right, or the DA wouldn’t have charged first degree murder. I’m surprised, though, that 12 jurors thought the circumstances indicated first degree murder beyond a shadow of a doubt. I don’t think I would have voted that way as a juror, based on what we know, because it seems an entirely unjust result for the case of a law-abiding shopkeeper subject to a violent attack by lawbreakers, in fear for his life, and having to make snap judgments in 1:16, to lock him up for life. But maybe there was other evidence before them — demeanor of the accused, prior acts, etc., that we can’t know.

  • DonS

    Kerner, I am sure you are right, or the DA wouldn’t have charged first degree murder. I’m surprised, though, that 12 jurors thought the circumstances indicated first degree murder beyond a shadow of a doubt. I don’t think I would have voted that way as a juror, based on what we know, because it seems an entirely unjust result for the case of a law-abiding shopkeeper subject to a violent attack by lawbreakers, in fear for his life, and having to make snap judgments in 1:16, to lock him up for life. But maybe there was other evidence before them — demeanor of the accused, prior acts, etc., that we can’t know.

  • WebMonk

    Hey kerner, try Googling “oklahoma jury instructions”. First result.

    http://www.oscn.net/applications/oscn/index.asp?ftdb=STOKJU&level=1
    :-D

  • WebMonk

    Hey kerner, try Googling “oklahoma jury instructions”. First result.

    http://www.oscn.net/applications/oscn/index.asp?ftdb=STOKJU&level=1
    :-D

  • Cincinnatus

    In the West (as in Europe, England, and the original American colonies, et al., not South Dakota), thieves were once executed. Thievery was thus rather rare except in cases of extreme desperation (i.e., I can certainly starve, or I can steal and possibly be caught and executed). My how times have changed.

    Incidentally, colonial Williamsburg (as a somewhat random historical example) had no organized police. None. Every citizen was required to have a functioning firearm, and every citizen was legally authorized to use it in self defense of life and property. A violation of rights (i.e., a crime against oneself) required the issuance of a warrant, at which point citizens arrested the accused. Many crimes were punished by execution; others were punished by public humiliation/flogging. There were no prisons; jails existed only to house the convicted prior to and during their trials. Not such a bad system, if you ask me.

    /cue cries of “barbarism!”

  • Cincinnatus

    In the West (as in Europe, England, and the original American colonies, et al., not South Dakota), thieves were once executed. Thievery was thus rather rare except in cases of extreme desperation (i.e., I can certainly starve, or I can steal and possibly be caught and executed). My how times have changed.

    Incidentally, colonial Williamsburg (as a somewhat random historical example) had no organized police. None. Every citizen was required to have a functioning firearm, and every citizen was legally authorized to use it in self defense of life and property. A violation of rights (i.e., a crime against oneself) required the issuance of a warrant, at which point citizens arrested the accused. Many crimes were punished by execution; others were punished by public humiliation/flogging. There were no prisons; jails existed only to house the convicted prior to and during their trials. Not such a bad system, if you ask me.

    /cue cries of “barbarism!”

  • Dennis Peskey

    It may help to contrast the two shootings to gain a clearer picture. If what DonS (#16) reported is correct, then the shooter did possess a degree of premeditation prior to fatally shooting the intruder (who was nolonger inside the premises).

    In the former case, the young mother first called 911 to request permission to shoot (the two men had yet to enter her house). 911 clearly stated she was authorized to take whatever means necessary to protect herself and her baby. When the first male entered – she unloaded a 12 guage shotgun on him – he died. The other male fled. Note she did not pursue the other man, who subsequently turned himself over to authorities. Her sole motive was self-defense whereas the store owner clearly operated on motives other than self-defense when he pursued the wounded intruder. I still have some discomfort over a first-degree murder charge. Shooting another human being is a very traumatic event and in the heat of the moment (or 1.16 minutes), to assign premeditation to such a distraught storekeeper seems harsh.
    Pax,
    Dennis

  • Dennis Peskey

    It may help to contrast the two shootings to gain a clearer picture. If what DonS (#16) reported is correct, then the shooter did possess a degree of premeditation prior to fatally shooting the intruder (who was nolonger inside the premises).

    In the former case, the young mother first called 911 to request permission to shoot (the two men had yet to enter her house). 911 clearly stated she was authorized to take whatever means necessary to protect herself and her baby. When the first male entered – she unloaded a 12 guage shotgun on him – he died. The other male fled. Note she did not pursue the other man, who subsequently turned himself over to authorities. Her sole motive was self-defense whereas the store owner clearly operated on motives other than self-defense when he pursued the wounded intruder. I still have some discomfort over a first-degree murder charge. Shooting another human being is a very traumatic event and in the heat of the moment (or 1.16 minutes), to assign premeditation to such a distraught storekeeper seems harsh.
    Pax,
    Dennis

  • kerner

    Cin@24:

    It sounds like a great system. Until somebody kills a 14 year old over a stolen item that seems comparetively trivial, which the dead teen’s family strongly suspects the teen wasn’t really stealing. So the dead teen’s family decides that their teenage relative has been murdered and decides to bring the murderer to “justice”, by arrsting him, which he resists, so they kill him. So the family of the newly deceased decides to bring the dead teen’s family to “justice”, and so it goes. Instead of justice, we have a system of blood feuds.

    This system has been tried in numerous societies. The Arab world, Sicily, your own western Virginia. I guess it does save the taxpayers all those corrections costs…

  • kerner

    Cin@24:

    It sounds like a great system. Until somebody kills a 14 year old over a stolen item that seems comparetively trivial, which the dead teen’s family strongly suspects the teen wasn’t really stealing. So the dead teen’s family decides that their teenage relative has been murdered and decides to bring the murderer to “justice”, by arrsting him, which he resists, so they kill him. So the family of the newly deceased decides to bring the dead teen’s family to “justice”, and so it goes. Instead of justice, we have a system of blood feuds.

    This system has been tried in numerous societies. The Arab world, Sicily, your own western Virginia. I guess it does save the taxpayers all those corrections costs…

  • Cincinnatus

    kerner@26: Nice exercise of hyperbole.

    The criminal justice system of colonial Williamsburg was not at all synonymous with the “system” of the blood feud typical of many ancient societies (or that of Appalachian Virginia).

  • Cincinnatus

    kerner@26: Nice exercise of hyperbole.

    The criminal justice system of colonial Williamsburg was not at all synonymous with the “system” of the blood feud typical of many ancient societies (or that of Appalachian Virginia).

  • Klasie Kraalogies

    Not to detract from Kerner’s excellent remarks above, but the said killing comes across as either vengence/vigilantaism, in either case which the verdict would be the correct one.

  • Klasie Kraalogies

    Not to detract from Kerner’s excellent remarks above, but the said killing comes across as either vengence/vigilantaism, in either case which the verdict would be the correct one.

  • SKPeterson

    We also used to have a system of jury nullification in our courts, though I’ll admit that it was not really used for cases of theft or murder but for things like slander, libel and, particularly in our colonial context, treason and tax evasion. Just look up the history on Sam Adams (not the beer, but the real guy).

  • SKPeterson

    We also used to have a system of jury nullification in our courts, though I’ll admit that it was not really used for cases of theft or murder but for things like slander, libel and, particularly in our colonial context, treason and tax evasion. Just look up the history on Sam Adams (not the beer, but the real guy).

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “This system has been tried in numerous societies. The Arab world, Sicily, your own western Virginia. I guess it does save the taxpayers all those corrections costs…”

    Here is what I see in a system like this: The people were unwilling to and even unable to afford to incarcerate people who are too dangerous to have around. Either the crimes were punished by fines/slavery to make restitution + penalty to the victims. This can only be used on offenders who can pay and are safe enough to have around. People were too dangerous to have around could not be incarcerated because lots of the people had 10 kids they could barely afford to feed and they would find it morally wrong to pay to incarcerate a murderer and feed and clothe him at the expense of their own children. And they couldn’t let the offender because he would kill their wives and kids. When almost everything is done by human labor, you need a lot of calories and growing that much food was not that easy to do. Prisons are a luxury which the Catholic Church recognizes are not possible to maintain in many very poor societies which is why their opposition to the death penalty includes balancing the needs of the community safety against the sanctity of the life of the offenders. Hence it is not absolute prohibition but a prohibition in cases where the community can be protected and afford the mercy of preserving the lives of offenders.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “This system has been tried in numerous societies. The Arab world, Sicily, your own western Virginia. I guess it does save the taxpayers all those corrections costs…”

    Here is what I see in a system like this: The people were unwilling to and even unable to afford to incarcerate people who are too dangerous to have around. Either the crimes were punished by fines/slavery to make restitution + penalty to the victims. This can only be used on offenders who can pay and are safe enough to have around. People were too dangerous to have around could not be incarcerated because lots of the people had 10 kids they could barely afford to feed and they would find it morally wrong to pay to incarcerate a murderer and feed and clothe him at the expense of their own children. And they couldn’t let the offender because he would kill their wives and kids. When almost everything is done by human labor, you need a lot of calories and growing that much food was not that easy to do. Prisons are a luxury which the Catholic Church recognizes are not possible to maintain in many very poor societies which is why their opposition to the death penalty includes balancing the needs of the community safety against the sanctity of the life of the offenders. Hence it is not absolute prohibition but a prohibition in cases where the community can be protected and afford the mercy of preserving the lives of offenders.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    Blog post reviewing homicide rates in England over the past 800 years. He links to the study, but it is pay only.

    Note, graph is a logarithmic scale.

    http://akinokure.blogspot.com/2009/05/homicide-rates-over-past-800-years.html

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    Blog post reviewing homicide rates in England over the past 800 years. He links to the study, but it is pay only.

    Note, graph is a logarithmic scale.

    http://akinokure.blogspot.com/2009/05/homicide-rates-over-past-800-years.html

  • Cincinnatus

    Everyone: Of course, my defense of execution (NOT summary execution, kerner) and swift, colonial-style justice (public flogging and the like) is half facetious–but only half.

    sg: Great points. Incarceration also takes for granted not only the fact that we can afford a massive prison-industrial complex–which is doubtful even in America (cf.: California)–but also that violent criminals can be outsourced or shipped off to, say, the wastes of northern New York or Wisconsin where they pose no danger to the community. Colonists in Williamsburg and the like didn’t have the option of shipping violent offenders thousands of miles away, where they could assuage their consciences knowing that violence was not done but that the criminals are also someone else’s problem. Local communities couldn’t afford to have violent criminals in their midst, even if behind bars, in a sense more than monetary.

    Also, there’s a reason theft, especially horse theft comparatively recently in the United States, was a capital crime: property is necessary for life. To steal someone’s horse, for example, is to take away the means for his survival; in other words, it isn’t so distinct from murder. Perhaps we are too wealthy to recognize such distinctions today.

    Which is why I also never tire of repeating the trope that a “merciful” State is a luxury of the wealthy. And, like most luxuries, a questionable indulgence at that. I don’t see what we gain from treating our criminals as “softly” as we do other than the chance to pat ourselves on the back in front of our equally indulgent peer nations.

    But regardless of your thoughts on mercy and the death penalty, wouldn’t public shaming for petty offenses like drug distribution, etc., be more effective than incarceration? I’m more than semi-serious. A few days in the stocks subject to the spit and taunts of the public–maybe a few good lashings thrown in–is an experience that no one would wish to repeat. As it is, certain American communities (especially in urban black communities) regard a certain period of incarceration a rite of passage (I unfortunately have personal experience with this notion). A few sets of stocks are cheaper than elaborate prisons, as well.

    Oh well. A guy can dream ;-)

  • Cincinnatus

    Everyone: Of course, my defense of execution (NOT summary execution, kerner) and swift, colonial-style justice (public flogging and the like) is half facetious–but only half.

    sg: Great points. Incarceration also takes for granted not only the fact that we can afford a massive prison-industrial complex–which is doubtful even in America (cf.: California)–but also that violent criminals can be outsourced or shipped off to, say, the wastes of northern New York or Wisconsin where they pose no danger to the community. Colonists in Williamsburg and the like didn’t have the option of shipping violent offenders thousands of miles away, where they could assuage their consciences knowing that violence was not done but that the criminals are also someone else’s problem. Local communities couldn’t afford to have violent criminals in their midst, even if behind bars, in a sense more than monetary.

    Also, there’s a reason theft, especially horse theft comparatively recently in the United States, was a capital crime: property is necessary for life. To steal someone’s horse, for example, is to take away the means for his survival; in other words, it isn’t so distinct from murder. Perhaps we are too wealthy to recognize such distinctions today.

    Which is why I also never tire of repeating the trope that a “merciful” State is a luxury of the wealthy. And, like most luxuries, a questionable indulgence at that. I don’t see what we gain from treating our criminals as “softly” as we do other than the chance to pat ourselves on the back in front of our equally indulgent peer nations.

    But regardless of your thoughts on mercy and the death penalty, wouldn’t public shaming for petty offenses like drug distribution, etc., be more effective than incarceration? I’m more than semi-serious. A few days in the stocks subject to the spit and taunts of the public–maybe a few good lashings thrown in–is an experience that no one would wish to repeat. As it is, certain American communities (especially in urban black communities) regard a certain period of incarceration a rite of passage (I unfortunately have personal experience with this notion). A few sets of stocks are cheaper than elaborate prisons, as well.

    Oh well. A guy can dream ;-)

  • Cincinnatus

    Interesting chart, sg. Of course, no one here has asserted or denied that violent crimes rates were higher or lower at any particular point in history when compared with today (I referenced thievery, of course, but that’s not exactly “violent” by contemporary standards).

    Curious, though: how is he defining homicide? And how was it defined 800 years ago? Against whom? And where is he finding reliable, thorough data from eight centuries ago? I mean, I know Alfred the Great is famous for having commenced a census of (parts of) England. But I’m…skeptical.

    Anyway, since you raised the claim–”life is better now than in the horrible Middle Ages”–I’ll trot out my usual: http://listverse.com/2009/01/07/top-10-myths-about-the-middle-ages/

  • Cincinnatus

    Interesting chart, sg. Of course, no one here has asserted or denied that violent crimes rates were higher or lower at any particular point in history when compared with today (I referenced thievery, of course, but that’s not exactly “violent” by contemporary standards).

    Curious, though: how is he defining homicide? And how was it defined 800 years ago? Against whom? And where is he finding reliable, thorough data from eight centuries ago? I mean, I know Alfred the Great is famous for having commenced a census of (parts of) England. But I’m…skeptical.

    Anyway, since you raised the claim–”life is better now than in the horrible Middle Ages”–I’ll trot out my usual: http://listverse.com/2009/01/07/top-10-myths-about-the-middle-ages/

  • Cincinnatus

    Oh, and, don’t forget sg that there are numerous intervening variables, such as exponentially better medical technology and police response capabilities, that would have a bearing on your interpretation of that chart.

    Also, there is much competing data. One study I found suggests that violent crimes per 100,000 people in 14th century England (12.1) were much lower, for example, than recent violent crimes rates/100,000 in present day Moscow or Washington, DC (18.1 and 69.1 respectively).

    So, really, I’m not sure what you’re getting at. That massive prison establishments reduce murders? That violent penalties for violent crimes are a bad idea? Please clarify.

  • Cincinnatus

    Oh, and, don’t forget sg that there are numerous intervening variables, such as exponentially better medical technology and police response capabilities, that would have a bearing on your interpretation of that chart.

    Also, there is much competing data. One study I found suggests that violent crimes per 100,000 people in 14th century England (12.1) were much lower, for example, than recent violent crimes rates/100,000 in present day Moscow or Washington, DC (18.1 and 69.1 respectively).

    So, really, I’m not sure what you’re getting at. That massive prison establishments reduce murders? That violent penalties for violent crimes are a bad idea? Please clarify.

  • kerner

    Cin@34

    I don’t disagree with your general argument that there are so many variables that the value of the statistics is limited. But I would like to point out a few additional variables.

    One of them is that there were fewer “violent crimes” to commit. In old England there were only 9 common law felonies: Murder, Rape, Mayhem, Robbery, Sodomy, Larceny, Arson, Malicious mischief, and Burglary. These were fairly strictly defined, and a lot of acts that would be criminal now fell between the cracks.

    Today, every jurisdiction has dozens, if not hundreds, of felonies on the books, with more being drafted all the time by “law and order” legislatures believing that criminalizing eveything is the best way to fight crime. We probably agree that for the government to be constantly coming up with new ways to impose criminal penalties is a negative trend.

    But my point is that adding new crimes is a factor that would increase the crime rate.

    There is also the rate of reporting crime, which has also probably risen. That is, the number of actual crimes, and the number of times they are reported are not equal numbers. Sexual assaults and domestic violence batteries are two classic examples of this. Back in the day, the concept of “date rape” (the idea of voluntarily going close to the point of sex, and then saying “no”) was unknown. And for a husband to lay hands on his wife and children? Trust me, that never got reported to the statisticians.

    There is also the problem of even knowing whether a crime has been committed. If your sheep disappear, or your barn burns down, or if someone dies without a mark on him, how would you even know that a crime has been committed without today’s technology?

    I think some of those statistics are comparing apples and oranges.

  • kerner

    Cin@34

    I don’t disagree with your general argument that there are so many variables that the value of the statistics is limited. But I would like to point out a few additional variables.

    One of them is that there were fewer “violent crimes” to commit. In old England there were only 9 common law felonies: Murder, Rape, Mayhem, Robbery, Sodomy, Larceny, Arson, Malicious mischief, and Burglary. These were fairly strictly defined, and a lot of acts that would be criminal now fell between the cracks.

    Today, every jurisdiction has dozens, if not hundreds, of felonies on the books, with more being drafted all the time by “law and order” legislatures believing that criminalizing eveything is the best way to fight crime. We probably agree that for the government to be constantly coming up with new ways to impose criminal penalties is a negative trend.

    But my point is that adding new crimes is a factor that would increase the crime rate.

    There is also the rate of reporting crime, which has also probably risen. That is, the number of actual crimes, and the number of times they are reported are not equal numbers. Sexual assaults and domestic violence batteries are two classic examples of this. Back in the day, the concept of “date rape” (the idea of voluntarily going close to the point of sex, and then saying “no”) was unknown. And for a husband to lay hands on his wife and children? Trust me, that never got reported to the statisticians.

    There is also the problem of even knowing whether a crime has been committed. If your sheep disappear, or your barn burns down, or if someone dies without a mark on him, how would you even know that a crime has been committed without today’s technology?

    I think some of those statistics are comparing apples and oranges.

  • Joe

    Let’s not forget one of the most important aspects of the colonial system – flexibility. This is the flip side of the coin of swift and hard punishment. After a man had been tried and found guilty the court still had to determine if the law was reasonable as applied. This was an early form of what we think of as judicial review. Often the Courts found the application of the prohibition on stealing was unreasonable as to a poor person who stole a loaf of breed and the verdict would be vacated. On the other hand, a wealthy person just might be hanged for stealing trivial items because it was not unreasonable to hold them to the letter of the law – they had no good reason to steal.

    This flexibility was lost when we gained independence and moved in the direction of a criminal code as opposed to common law developed criminal law based on a few statutes. This change is one of the reasons Patrick Henry lead the charge to defeat ratification of the U.S. Constitution. He viewed this judicial review as an important check on gov’t power.

  • Joe

    Let’s not forget one of the most important aspects of the colonial system – flexibility. This is the flip side of the coin of swift and hard punishment. After a man had been tried and found guilty the court still had to determine if the law was reasonable as applied. This was an early form of what we think of as judicial review. Often the Courts found the application of the prohibition on stealing was unreasonable as to a poor person who stole a loaf of breed and the verdict would be vacated. On the other hand, a wealthy person just might be hanged for stealing trivial items because it was not unreasonable to hold them to the letter of the law – they had no good reason to steal.

    This flexibility was lost when we gained independence and moved in the direction of a criminal code as opposed to common law developed criminal law based on a few statutes. This change is one of the reasons Patrick Henry lead the charge to defeat ratification of the U.S. Constitution. He viewed this judicial review as an important check on gov’t power.

  • Klasie Kraalogies

    Joe – in Roman-Dutch law, as applied in South Africa in days of yore, they principle was what would the “normal, reasonable person do” under circumstances xyz. As opposed to what I perceive to be the wooden approach to the law espoused by many in the US.

  • Klasie Kraalogies

    Joe – in Roman-Dutch law, as applied in South Africa in days of yore, they principle was what would the “normal, reasonable person do” under circumstances xyz. As opposed to what I perceive to be the wooden approach to the law espoused by many in the US.

  • Cincinnatus

    KK@37:

    What? Roman, especially as applied in France, is the classic example of rigid, statutory law in contrast to the flexible, prudential Anglo-American common law.

    While the American common law does increasingly ossify, American criminal law is full of references to the “reasonable person.” In fact, are you sure your reference to South African law isn’t drawing from the English portion of SA’s legal development?

  • Cincinnatus

    KK@37:

    What? Roman, especially as applied in France, is the classic example of rigid, statutory law in contrast to the flexible, prudential Anglo-American common law.

    While the American common law does increasingly ossify, American criminal law is full of references to the “reasonable person.” In fact, are you sure your reference to South African law isn’t drawing from the English portion of SA’s legal development?

  • Joe

    Cincy – the common law does not ossify, it creates general principles that get applied to each unique set of facts and when the out come is contrary to common sense, it creates an exception to the rule. What ossifies is the codification of our laws.

  • Joe

    Cincy – the common law does not ossify, it creates general principles that get applied to each unique set of facts and when the out come is contrary to common sense, it creates an exception to the rule. What ossifies is the codification of our laws.

  • Klasie Kraalogies

    Cincinnatus – they called it Roman-Dutch law, officially. I would give you, the wikipedia reference, but sigh…… The Britannica article supports your thesis, but only somewhat . That article seems to borrow from the following treatise: http://www.lenel.ch/docs/history-of-sa-law-en.pdf

    An interesting quote from that thesis:

    E.1 Several sources
    The South African law is an uncodified legal system, i.e. several sources are available, namely statute laws, precedents, common law, custom, customary ethnic law, newer doctrine and the constitution. Not all sources have the same authority.

    E.2 Statute law
    In Roman-Germanic systems, the law has been codified for the best part. The South African system, however, is uncodified to a large part. Legislation is only made where newer technical developments or gaps make it necessary. Certain sections were codified
    comprehensively. The South African doctrine criticises mainly the rigidity of codification and the difficulty to codify precedents reaching back a couple of hundred years. The positivist interpretation of laws has the effect that they are applied very
    strictly on one hand and interpreted in conformity with common law on the other hand.

    E.3 Common Law
    It is generally acknowledged in South Africa, that the common law is the primary source of the law, whereby common law means Roman-Dutch, not English law. The former is much more dogmatic and principled than English law. Private law plays a central role,
    while the public law was neglected up to now.
    Some authors regard the “old authorities” even as a source of its own. These so-called“ou Skrywers”, which are often cited, can be divided into four categories:
    - The works the old Roman-Dutch authorities
    o Johannes VOET, Commentarius ad Pandectas
    o Hugo DE GROOT, Inleydinge tot de Hollandsche Rechtsgelertheid
    o Simon VAN LEEUWEN, Het Roomsch-Hollandsch Recht
    o Johannes VAN DER LINDEN, Rechtsgeleerd Practicaal en Koopmans Handboek
    o Less known authors like Arnoldus VINNIUS, Gerard NOODT und Simon VAN GROENEWEGEN, Ulrichus HUBER, D.G. VAN DER KEESSEL
    - The decisions of the courts of Holland and other courts of the Netherlands in application of Roman-Dutch law (collections of Cornelis VAN BIJNKERSHOEK, Willem PAUW)
    - Commentaries of lawyers to practical legal problems
    - The laws, which were in effect up to 1652 in Holland, particularly the political ordinance of 1580, the eternal edict of 1540, the Groot Placaet Boek and the Oktrooi of 1661.

    The works of the “old authorities” are as important as court decisions. Court decisions ignoring them can easily be overturned. Whether authors from other areas of Europe may be cited, is often debated, but current practice.

    E.4 Roman law
    It would go too far to discuss Roman law sources comprehensively, but it shall be noted, that South African courts still apply – probably as the last courts on earth – the Corpus Iuris Civilis and the works the Glossators and Postglossators, whereby in case of doubt
    the Roman-Dutch practice takes priority.

    It then goes on to discuss precedent law, the constitution and then, ethnic law:

    E.8 Customary ethnic law
    African customary law95 is unwritten law, which is found in legislation, precedents, custom, reports of commissions, legal literature and anthropological articles. Important is the “compendium”, which was compiled in the year 1858 under Chief Commissioner Col. John MACLEAN in British Kaffraria, and the reports and statements before commissions from before 1910, whereby the quality of these sources varies. Courts have often referred to them in their decisions.

    In the traditional African law, all details of a case had to be inquired and memorised. There were no summaries, no written notes. Each detail had to be discussed in full, before the leader of a tribe would arrive at a decision. The western ideas of an undefined past, a present and a future are foreign to African communities. The African law does not differentiate between private and public law.

    The South African tradition must be the only one who, while still drawing on ORIGINAL Roman legal documents, as well as Germanic writings, also consults moderns opinions, case laws, Constitutionary law AS WELL as tribal ethnic law and traditional Islamic courts. Talk about an interesting legal system!!

    As your reference to “reasonable person”, the application versus the rulebook sometimes seem to differ. But I’m just a layman, so my opinion might be coloured by the media (who would have thought? :) )

  • Klasie Kraalogies

    Cincinnatus – they called it Roman-Dutch law, officially. I would give you, the wikipedia reference, but sigh…… The Britannica article supports your thesis, but only somewhat . That article seems to borrow from the following treatise: http://www.lenel.ch/docs/history-of-sa-law-en.pdf

    An interesting quote from that thesis:

    E.1 Several sources
    The South African law is an uncodified legal system, i.e. several sources are available, namely statute laws, precedents, common law, custom, customary ethnic law, newer doctrine and the constitution. Not all sources have the same authority.

    E.2 Statute law
    In Roman-Germanic systems, the law has been codified for the best part. The South African system, however, is uncodified to a large part. Legislation is only made where newer technical developments or gaps make it necessary. Certain sections were codified
    comprehensively. The South African doctrine criticises mainly the rigidity of codification and the difficulty to codify precedents reaching back a couple of hundred years. The positivist interpretation of laws has the effect that they are applied very
    strictly on one hand and interpreted in conformity with common law on the other hand.

    E.3 Common Law
    It is generally acknowledged in South Africa, that the common law is the primary source of the law, whereby common law means Roman-Dutch, not English law. The former is much more dogmatic and principled than English law. Private law plays a central role,
    while the public law was neglected up to now.
    Some authors regard the “old authorities” even as a source of its own. These so-called“ou Skrywers”, which are often cited, can be divided into four categories:
    - The works the old Roman-Dutch authorities
    o Johannes VOET, Commentarius ad Pandectas
    o Hugo DE GROOT, Inleydinge tot de Hollandsche Rechtsgelertheid
    o Simon VAN LEEUWEN, Het Roomsch-Hollandsch Recht
    o Johannes VAN DER LINDEN, Rechtsgeleerd Practicaal en Koopmans Handboek
    o Less known authors like Arnoldus VINNIUS, Gerard NOODT und Simon VAN GROENEWEGEN, Ulrichus HUBER, D.G. VAN DER KEESSEL
    - The decisions of the courts of Holland and other courts of the Netherlands in application of Roman-Dutch law (collections of Cornelis VAN BIJNKERSHOEK, Willem PAUW)
    - Commentaries of lawyers to practical legal problems
    - The laws, which were in effect up to 1652 in Holland, particularly the political ordinance of 1580, the eternal edict of 1540, the Groot Placaet Boek and the Oktrooi of 1661.

    The works of the “old authorities” are as important as court decisions. Court decisions ignoring them can easily be overturned. Whether authors from other areas of Europe may be cited, is often debated, but current practice.

    E.4 Roman law
    It would go too far to discuss Roman law sources comprehensively, but it shall be noted, that South African courts still apply – probably as the last courts on earth – the Corpus Iuris Civilis and the works the Glossators and Postglossators, whereby in case of doubt
    the Roman-Dutch practice takes priority.

    It then goes on to discuss precedent law, the constitution and then, ethnic law:

    E.8 Customary ethnic law
    African customary law95 is unwritten law, which is found in legislation, precedents, custom, reports of commissions, legal literature and anthropological articles. Important is the “compendium”, which was compiled in the year 1858 under Chief Commissioner Col. John MACLEAN in British Kaffraria, and the reports and statements before commissions from before 1910, whereby the quality of these sources varies. Courts have often referred to them in their decisions.

    In the traditional African law, all details of a case had to be inquired and memorised. There were no summaries, no written notes. Each detail had to be discussed in full, before the leader of a tribe would arrive at a decision. The western ideas of an undefined past, a present and a future are foreign to African communities. The African law does not differentiate between private and public law.

    The South African tradition must be the only one who, while still drawing on ORIGINAL Roman legal documents, as well as Germanic writings, also consults moderns opinions, case laws, Constitutionary law AS WELL as tribal ethnic law and traditional Islamic courts. Talk about an interesting legal system!!

    As your reference to “reasonable person”, the application versus the rulebook sometimes seem to differ. But I’m just a layman, so my opinion might be coloured by the media (who would have thought? :) )

  • Cincinnatus

    KK: Fascinating stuff! Thanks for sharing.

    Joe: We’re not disagreeing. What I meant was that the United States has, for a century at least, been in the process of shifting from a system in which most legal questions are considered matters for prudential common law to one where most are matters for the increasingly codified administrative-statutory-regulatory state.

  • Cincinnatus

    KK: Fascinating stuff! Thanks for sharing.

    Joe: We’re not disagreeing. What I meant was that the United States has, for a century at least, been in the process of shifting from a system in which most legal questions are considered matters for prudential common law to one where most are matters for the increasingly codified administrative-statutory-regulatory state.

  • kerner

    Cin @41:

    You are correct about the direction that the formation of law is taking in the US. But you do realize that most of the vilification of Judge made law comes from the right, no? Roe v. Wade is “judge made” law, and the Supreme Court spent a whole lot of time and effort justifying that decision on the pery principles you and Klasie are now discussing. The majority in Roe were just trying to do what they thought was reasonable (allow what a normal, reasonable person should be allowed to do) under what they perceived as the changing conditions and culture of late 20th century America.

    On a less eggregious note, the requirement of “reading his rights”, i.e. Miranda warnings, to accused criminals in custody is totally judge made. A lot of conservatives don’t like that either. The “exclusionary rule” (that illegally obtained evidence cannot be used in court) is totally judge made, based on the conclusion that a normal reasonable police officer will not stop obtaining evidence illegally as long as the courts admit it at trial. That judge made rule generates plenty of outcry everytime a criminal gets off because some evidence could not be used to convict him. And the list goes on.

  • kerner

    Cin @41:

    You are correct about the direction that the formation of law is taking in the US. But you do realize that most of the vilification of Judge made law comes from the right, no? Roe v. Wade is “judge made” law, and the Supreme Court spent a whole lot of time and effort justifying that decision on the pery principles you and Klasie are now discussing. The majority in Roe were just trying to do what they thought was reasonable (allow what a normal, reasonable person should be allowed to do) under what they perceived as the changing conditions and culture of late 20th century America.

    On a less eggregious note, the requirement of “reading his rights”, i.e. Miranda warnings, to accused criminals in custody is totally judge made. A lot of conservatives don’t like that either. The “exclusionary rule” (that illegally obtained evidence cannot be used in court) is totally judge made, based on the conclusion that a normal reasonable police officer will not stop obtaining evidence illegally as long as the courts admit it at trial. That judge made rule generates plenty of outcry everytime a criminal gets off because some evidence could not be used to convict him. And the list goes on.

  • DonS

    Kerner @ 42:

    It’s true that Roe v. Wade and its predecessor, Griswold v. Connecticut, are “judge-made” law, that’s for sure. But those decisions certainly are not true to the principles of common law jurisprudence, which is based on an analysis of existing law, both statutory and jurisprudential, and making a good faith application of that law to the facts at issue. For common law jurisprudence to work well, judges need to be faithful and consistent in applying established jurisprudence, so that the citizens have an understanding of the law and how it is likely to be applied to their circumstances. Activist judging, where judges just “make it up” based on what they think the people have evolved into wanting, is antithetical to a successful and predictable common law system.

    By the way, I’ll never understand why those on the left think that an “active, living, changing” Constitution is better or more protective of minorities. It seems to me that, by definition, it favors the rights of those who are favored by the majority in society, and disfavors those who have fallen out of favor in society. For example, 8th Amendment definitions of “cruel and unusual punishment” are most susceptible to the notions of “evolving standards of decency”, which is how the courts justify throwing out means of execution which have been used for centuries without being thought to be cruel. What if, however, society evolves in the future toward barbarism? Do those of you on the left want the Court to move with society in that case? Be careful what you wish for. Absolute standards of law, immutable regardless of the whims of the majority, are clearly your best protection.

  • DonS

    Kerner @ 42:

    It’s true that Roe v. Wade and its predecessor, Griswold v. Connecticut, are “judge-made” law, that’s for sure. But those decisions certainly are not true to the principles of common law jurisprudence, which is based on an analysis of existing law, both statutory and jurisprudential, and making a good faith application of that law to the facts at issue. For common law jurisprudence to work well, judges need to be faithful and consistent in applying established jurisprudence, so that the citizens have an understanding of the law and how it is likely to be applied to their circumstances. Activist judging, where judges just “make it up” based on what they think the people have evolved into wanting, is antithetical to a successful and predictable common law system.

    By the way, I’ll never understand why those on the left think that an “active, living, changing” Constitution is better or more protective of minorities. It seems to me that, by definition, it favors the rights of those who are favored by the majority in society, and disfavors those who have fallen out of favor in society. For example, 8th Amendment definitions of “cruel and unusual punishment” are most susceptible to the notions of “evolving standards of decency”, which is how the courts justify throwing out means of execution which have been used for centuries without being thought to be cruel. What if, however, society evolves in the future toward barbarism? Do those of you on the left want the Court to move with society in that case? Be careful what you wish for. Absolute standards of law, immutable regardless of the whims of the majority, are clearly your best protection.

  • DonS

    I should hasten to add, Kerner, that my entreaty to “those of you on the left” was not directed to you. I know that you are a man of the right.

    Just thought I should clarify that :-)

  • DonS

    I should hasten to add, Kerner, that my entreaty to “those of you on the left” was not directed to you. I know that you are a man of the right.

    Just thought I should clarify that :-)

  • Cincinnatus

    kerner@42: Meanwhile, the greatest source of administrative regulations and the like is the left.

    Anyway, what’s your point? Am I supposed to back off my point or reconsider my entire worldview because many members of the right rail against the further development of common law? It’s an interesting phenomenon you’ve noted, but I’m not sure why it matters other than to prove that self-described conservatives in the United States aren’t nearly as conservative as they think they are.

    On the other hand, Roe v. Wade isn’t exactly a sterling example of conservative, prudential judicial consideration. It was a pretty radical move by a fairly radical bench–and “radical” should never be used in the same sentence as “common law.”

  • Cincinnatus

    kerner@42: Meanwhile, the greatest source of administrative regulations and the like is the left.

    Anyway, what’s your point? Am I supposed to back off my point or reconsider my entire worldview because many members of the right rail against the further development of common law? It’s an interesting phenomenon you’ve noted, but I’m not sure why it matters other than to prove that self-described conservatives in the United States aren’t nearly as conservative as they think they are.

    On the other hand, Roe v. Wade isn’t exactly a sterling example of conservative, prudential judicial consideration. It was a pretty radical move by a fairly radical bench–and “radical” should never be used in the same sentence as “common law.”

  • Richard

    Dennis (#25),

    That storekeeper certainly didn’t sound “distraught” when he killed the robber according to the descriptions I’m reading here. First degree murder requires a mens rea, which would have been precluded by someone in the grip of powerful emotions other than one of wanting to kill the guy. Sounds just to me.

  • Richard

    Dennis (#25),

    That storekeeper certainly didn’t sound “distraught” when he killed the robber according to the descriptions I’m reading here. First degree murder requires a mens rea, which would have been precluded by someone in the grip of powerful emotions other than one of wanting to kill the guy. Sounds just to me.

  • Joe

    Kerner – there is a difference and, I am sure you know already what it is. The judge-made-law problem with Roe is not that a judge developed the idea that personal privacy includes the right to have an abortion. The problem with Roe is that the Court said this right was some where in a written constitution. The problem is that this common law style analysis is now set in stone and free from the normal future development of the common law. Thus, it is very different from traditional judge made common law.

    Cincy @ 41. Got it! Glad we are on the same page.

  • Joe

    Kerner – there is a difference and, I am sure you know already what it is. The judge-made-law problem with Roe is not that a judge developed the idea that personal privacy includes the right to have an abortion. The problem with Roe is that the Court said this right was some where in a written constitution. The problem is that this common law style analysis is now set in stone and free from the normal future development of the common law. Thus, it is very different from traditional judge made common law.

    Cincy @ 41. Got it! Glad we are on the same page.

  • kerner

    Cin @45:

    I don’t know that I have a definite point. I just question whether having no definite rules for legal parameters creates the political nirvana that your comments seem to imply. Having no definite statements of what is prohibited (for both the individual or for government) seems like a recipe for the arbitrary exercize of power to me.

    I mean, the only restriction is people (or the government) can not do anything that is “not reasonable” or “not normal”? What does that even mean? And, if “reasonable and normal” means simply whatever the majority says it means, don’t we jettison the entire concept of individual rights.

    Joe:

    Actually, I think the Roe (and Griswold before it) was based at least in part on the 9th Amendment concept that there are “non-enumerated” rights that are not explicitly listed in the Bill of Rights, but that none the less exist, are protected, and that the courts can enforce; and that while not specifically enumerated, these rights are “in the constitution” in the sense that the 9th Amendment says they exist. Having determined that there are such things as rights that are not enumerated, the Supreme Court set out to identify some, and we ended up with Roe v. Wade.

  • kerner

    Cin @45:

    I don’t know that I have a definite point. I just question whether having no definite rules for legal parameters creates the political nirvana that your comments seem to imply. Having no definite statements of what is prohibited (for both the individual or for government) seems like a recipe for the arbitrary exercize of power to me.

    I mean, the only restriction is people (or the government) can not do anything that is “not reasonable” or “not normal”? What does that even mean? And, if “reasonable and normal” means simply whatever the majority says it means, don’t we jettison the entire concept of individual rights.

    Joe:

    Actually, I think the Roe (and Griswold before it) was based at least in part on the 9th Amendment concept that there are “non-enumerated” rights that are not explicitly listed in the Bill of Rights, but that none the less exist, are protected, and that the courts can enforce; and that while not specifically enumerated, these rights are “in the constitution” in the sense that the 9th Amendment says they exist. Having determined that there are such things as rights that are not enumerated, the Supreme Court set out to identify some, and we ended up with Roe v. Wade.

  • Me

    I think the guy should be given a cash reward and a metal, he took a criminal off the street, and as opposed to what could have happened if he had been take into police custody, he isn’t going to be coming back, just saying.

  • Me

    I think the guy should be given a cash reward and a metal, he took a criminal off the street, and as opposed to what could have happened if he had been take into police custody, he isn’t going to be coming back, just saying.


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