Tuesday, July 16, 2013
• Today: the Enlightenment!
• Terrorism, drone, torture thing
• Potential essay topic: drones, the ethical consequences or issues surrounding use of
drones, national law, cirminal law. Whether they're war crimes.
• Syriana (movie), Yemeni cleric born in the States. Obama signed death warrant for him,
took him out with a drone.
• Escalating in popularity, expense, diminishing with accuracy...
• British human rights lawyer (Ben Emerson) said they're investigating the "exponential
rise of the use of drones", particularly as used in coutner-terrorist operations. THe
essential mantra is that it's terorism, therefore it's special and not all the usual rules
apply. That leads into the eternal ethical consideration, question of just wars.
• What is a just war? What's justifiable? What are the rules historically, the limits? The
purpose of th einvestigation was to determine whether there is a justifiable use of drones
for unlawful kiling (war crimes). This follows on our discussion of Zero Dark Thirty and
the apropriate use of the force (there was no moral consideration of the actions, they just
do it). The UN COmmission is really looking into the use of drones as the exemplar of
• Question about US, Israel, Britain, a few others. THose are the ones well-known to be
indulging in the drone business. They're watching this investigation because "this form of
warfare is here to stay. You can't expect the world to drive on to the precipice...killing
civilians..." The inexpensive nature of killing someone is very attractive.
• Deputy National Security of the Obama administration: "it's the US right to defend
national interest against stateless enemy". It IS a stateless enemy, the war on terorism is
not geopolitical but metaphorical.
• Mr. Emerson said that argument's been rejected by a majority of countries outside the
• The fact that Obama is transparent about it ("I have a kill list, I sign off when these things
are sent"), but he's still doing it. Intersting to see how this COmmission reports (what if
they say they're unlawful killings?) They're based on the Nuremberg Principles, which
set what are war crimes. The respective individual courts (The Hague, Bosnia, etc.)
would have porbably said these are war crimes-- they breach sovereignty, they're
aggressive. Bin Laden was taken out In Pakistan, but Pakistan was not consulted-- it's
an invasion, a violent attack against someone situated in their state!
• Parallel in Canadian law: if you're drug dealer and scooped due to a wire tap, yo could
argue that it's against your Charter rights in terms of privacy protection, but that doesn't
mean the information will be thrown out. It might mitigate the sentence, but not rejectt he
trial process. so you could argue that Argentina and Canada were notorious for being the end of an Old Boy's route after the collapse of the Nazi regime so extensively that
Eichmann was visible under his assumed name, but Argentina wasn't coughing him up.
So it's a case of how you get him, whether he gets expedited properly or scooped.
• How dirty can you get your hands in th ename of protecting against terrorism before it's
just too dirty?
• One student said it's difficult to self-regulate because you're not going to want to admit to
your own war crimes. US wouldn't agree that it was committing war crimes in
Guatemala, for example. So whether or not it counts as war crime depends on where
you're coming from. Prof: US afraid that their GI's will not be treated well. Bush sai dhe
was above the Geneva conventions, it's a problem of appearance too.
• Why should there be a war on terrorism? Why isn't it a regular system? Why do we have
to make a big deal out o fdeclaring it, why should there be a military tribunal... What's
wrong with our system? It's like they're inferentially refuting their own system, saying the
justice system isn't good enough. It's like they want punishment, just want these people
to be guilty.
• Just because there's political motive, why does that need a whole new system of justice?
Bush could have said, "This is an outrage. We'll work with everoyne to put the
perpetrators to justice" instead of creating this war atmosophere, which in the US is a
political tool for mainting power and control. All the militaristic jargon flowed from there...
• BACK TO THE ENLIGHTENMENT!
• Denis Diderot (encyclopedist in France) turns 300 this year! He was great philosopher,
• France is going to give him ceremonial reburial in the pantheon (where Napoleon is
buried). He was one of the principal architects of the Enlightenment.
• Enlightenment: period in the 17th-18th century, just up to the American Rev (1776),
French Rev (1789)
• He came to preach the right of the individual to determine th ecourse of his/her own life.
Unlike some of the other faous people, he wasn't deist-- he didn't particularly push a
religion or God. He though thtat when you preach the right of the indiviual to determine
the cours eo fhis/her own life, he could do so politically, religiously, or socially, can
achieve emancipation in his area because he chose to. Religious upheaval. Diderot
stood out. He was essentially saying that the church shouldn't get to divinely interpret
everything you do or impose things on you-- distancing from divine authority.
• He said these decisions should always be in the interest of the Common Good
(betterment of mankind). It's the first step towards Truth.
• People in Scotland, England, Germany, Italy, France, in the 17th-18th centruy were
shaking out their intellectual hair, applying power of reason and logic to the laws of
nature and man, applying it to the things that had previously been accepted. • Descartes famous for the phrase, "I think therefore I am." Rejoicing in the fact of being
as a thinking entity.
• Isaac Newton-- 17th centruy, worke don movement of the stars, laws of motion, calculus,
working on the refracting teloscope. Developed Newton's Third Law-- every action has
an equal and opposite reaction. He wasn't saying religion's out, but no longer do you
have to say that the stars are superstitially important. They weren't portense, they were
there for a natural reason, ahd a role in the universe, he analysed them scientifically.
• Adam Smith (capitalist) wrote THe Wealth of Nations-- thesis: the greater good was
served by individuals serving self-interest. Capitalism and economic individualism is
important driving factor.
• A lot of thse principles comign to be applied to government and society too. People were
starting to think, began to feel more, looked around. Saw that the justice system was
creatking. There were hudnreds of offenses for which you could hang. With greater
understanding of what being a human being meant (there were other things you could
aspire to), they began to question the nature of their own justice system. is tehre
something disproportionally harsh about it?
• We could begin to improve human circumstances if we want to-- utilitarianism
(Germany)-- great legal renaissance fellow, flourisghin 1750-1832, synonymous with
English legal reform period. Utilitarian philosophies were really improtant.
• Scientific revolution (began 17th century), natural laws (Newtaon, astronomy, physics,
mathematics, laws of motion). God now interpreted as intending mant o interpret nature
and reason, rather than just accepting scriptures as the Word.
• John Locke wrote "Concerning Human Undrstanding'-- all knowledge conssited of ideas
which origianted in observaiton or sensation. Activity of the individual (rather than
passivity, accepting scripture and the divine will) would result in human understanding, it
would be pleasant for humanity.
• People are feeling that it's perhaps possible that man can undrestand and influence his
• HOW DOES THIS PLAY INTO GREAT LAW REFORMS? Early years of 19th century upt
o 1832, creating our law system we have today!!
o **NOTE: LATE 1700S UP TO 1832: KEY PERIOD FOR ENGLISH LAW
o Professional policing by the state, colonization of the judicial system by lawyers
(they help create mor eimpersonal relationship between the law, courts, and
individuals effected), penitentiary grew up.
• AN AIR OF REVOLUTION (18th century). The 13 colonies of America dumped England,
France dumped the old monarchy. People of the old system are nervous, see
challenging ideas. Rising capitalist interest-- aristocratic influences decreasing, the
capitalist (mercantile) class is the new middle class, saying they want peace and order, more transparenty int eh system so there's more regularity and confidence amongst the
citizens, so there isn't crime and mobs in the streets (bad for business).
• The heart of the issue: CAPITAL PUNISHMENT. That was really debated by
philosophers, writers, many critics for decades, queried the value and impact of the
traditional severity of justice in the English system. Protracted public concern about that.
People determined that the machinery of justice in Britain was broken.
• Examples of how people were raised to the cause:
o Prestine in England, 1805- in country churchyard, inscription: "To the memory of
Mary Morgan...unenlightened by the sacred truths of
Christianity...shame...murder o fher bastard child...guilt and remorse...her
benevolent judge, she underwent the service of the law...perpetuat ethe
remembrance of a departed penitent, to remind the living..."
This stone commemorates that the local lord of the land had his way with
a young servant girl, impregnated her, abandoned her with no legal
recourse, she probably killed her child because she had no means of
support and was a social/legal outcast with a bastard child. The twist is
that one of the mebers of the board that returned the bill of endictment of
murder agaisnt her was the guy who impreganted her! Chauvinist
Over to the side of this stone was a little stone saying, "To the memory of
Mary Morgan...who suffered...He who is without a sin among you, let him
cast the first stone upon her."
Her lawyer jumped o his horse, rode to London to get a pardon for her.
The judge didn't pay attention to this, the lawyer rode into town with the
pardon an hour after she had been hanged. Tragic.
But a story like that enflamed. People begin to say, "What's so fair about
that/ What's good about our system if that's what it's doing?"
o Emmanuel Kant- Enlightenment is man's emergence from his self-incurred
immaturity. Immaturity is inability of one to use his undrestanding without th
eguidance of another. INvestigate, have the courage to use your own
o John Locke- sensation, refleciton, asking people to question things
o Jeremy Bentham- utilitarian. Goodness and comfort. There are two thigns in life:
pain and comfort. Man prefers comfort. His innovative aproach to legal reform--
its' no the severity of legal punishmetn that matters, but the certainty that they will
be punished. Transparent, understandable, gradated system, proportionate
sentences, state police (itnegrity to the system), etc.
IN a closet in University of London where he taught. When he died, he
willed his body to eh university, was disscted. His head was removed, plaed in the college. Wax head replaced it, his body stuffed with straw
and stuff. People are still doing their PhD theses on some of his writings.
His rationale for reform: not questioning deterrence, but saw that
whatever was being foisted on English people was not effective. The
showday of hangings was the day for pickpockets, it never stops. The
system had invested interest. Most of the people who were functionaries
in the justice system (lawyers, judges, etc.) were part of the problem--
they had invested interest in it continuing, wanted it to continue.
The system was ancronistic, the Tory party were weaving a veil of self-
serving interset in technicalities (the Common Law) over the little guy.
Bentham felt that the best deterrent was the certainty, rather than the
severity, of retribution. these offences should be articulated, the principles
behind them made clear to all and consistently administered (not to the
whim of any particular judge), in relatino to a body of law that develops,
ther should be codified series of offences, punishment should be
proportionate (divested of excessive judicial discretion. It shouldn't be that
one offender sleeps with the judge and goes away scot-free while another
There should be professional police (state police), prosecutor. Before
that, you instigaed the prosection (victim's relatives). there should be
state prosecutor who independently reviewed things.
Lord Brom said the age of reform and the age of Bentham are one and
the same. (He was big deal)
o John Cartright- personality is the sole foundation of the right of being
represented. (At the time, to have a seat in Parliament, have your own land.) He
said property has nothing to do with the case, it's totally involved in the individual
man...it contributes nothing to his right of having that representation. (That's
completely against aristocrats! Saying people should get up, revolt, make choice
for their own future!)
• Both general political parties/groups were shepherding/responding to the tos and fros of
this philosophising and ongoing debate about the system. The parties were the Tories
and the Whigs.
o Whig: 17th century Scottish Presbyterian phrase, Whigamore, probably
derivaiton from word 'whig' (to drive), basically from a Celtic word that means
horse driver. They're the founding body of the Liberals. Coalesced around
opposing the Catholic monarchy continuing in England (James II ousted)- they
were for the Church of England.
o Tories: ultra-conservatives. Got their name from Torai (bandit)-- Irish Gaelic term.
they were in favour of monarchy, favoured royal authorit over Parliament.
Staunchly opposed to social/political reform. • Whigs were championed in late 18th/early 19th century by Samuel Romilly. Largely
formulated he scope of the Whig approach to legal reform in England. He tried as a
Whig durign conservative government times to repeal so many statutes that were harsh
and excessive. His great accomplishment: managed to get the Elizabethan statute
repealed in 1808 (called for death penalty for simple personal theft).
o He felt that the uncertainty and unpredictability around the criminal legal system
was abusive, the operaitn of cirminal law in England needed overhaul. The
reasons for execution were often varied, unfair. Human life should weigh mor ein
the balance against government policy. More of a focus on the individual.
o He (like Bentham) applied the utilitarian approach. These two worked in tandem--
Romilly and Bentham. Romilly unfortunately committed suicide in 1818 after his
wife died in horse accident on the Isle of White. But he had a major effect.
• The debate on capital punishment was the major thing. It was the major key to all of this,
because capital punishment was applied to almost everythign in the system. To debate it
was to question the whole system.
• three basic streams:
o intellectual legal debate: Bentham, Lord Broms, Romilly-- talk about the severity,
trying to focus on practice rather than severe theory and philosophy.
o Humanitarian stream: amorphous feeling back for people like Mary Morgan. That
would be in everyone's mind from various counties and shires around England,
expressing popular revulsion for excessive penalties for minor infractions of
o Class interest: the emergence of the mercantile class as the new middle class,
major shift economically with new property owners, desire for peace and order so
that there can be more confidence in planning business affairs, less threat of
• The brilliance of the Whigs was hat they were no more interested in social reform than
the Tories. It's not like they wanted to change the class system, take money from the rich
and throw it to the poor. BUt they read the change of winds, wanted to make the system
more transprent, fairer, rendering it more appealing. People could rely on it, knew what
was what, could have more confidence. Very Machiavellan-- changing the appearance
rather than the substance of the structure of society. We should not confuse legal reform
for social reform.
o But the positive impact was transparancy, access, general equity. The law would
apply the same to rich and poor.
o The offshoot is that this new healthy aproach to the law would be associated with
their image as a party. It's like branding the Whigs.
o One lord said that what they achieved was, "saying the truth could be arrived at
in a manner satisfactory to the public". • The Tories felt that the attack on capital punishment was an attack on the whole system
(quite rightly). The fact that individual judges had the ability to impose a pardon or grant
mercy as they saw fit was not a flaw ut the unique jewel in the crown of English justice.
They in their wisdom could dispense wisdom freely, they should have discretion, a code
would be too restrictive and mechanical. They also felt if things changed, the monarchy
could be overhrown (like French Revolution). Als, juries were unenlightened and poor
vehicles for the exercise in discretion. Colonel Franklin said that "to gradate the offences
was to weaken the moral code of the Englishman. He would be deluding the
deterrence". Typical. They wanted to be muscular Christians and say that any offence,
no matter how muscular, is a serious matter and a breach of the peace. Pardon and
mercy not flaws, but rather the safeguard of this otherwise severe framework. Harshness
and severity were the key to it-- they completely approvd of it.
o Famous cleric, Reverend Sidney Smith: "They, the opponents of reform, want to
keep the bees from buzzing and stinging in order that they may rob the hive of
o But Tories aren't all that bad. Queen Victoria's favourite PM, Benjamin Desraeli
(Tory)-- "Two nations, between them there is no intercourse or sympathy, as
ignoratn of each other's habits, thoughts, and feelings, as though they are two
different zones, formed form different breeding, fed