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Old November 27, 2008, 07:21 PM   #1
rampage841512
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The Rule of Law

Many believe that in order to have a working society the rule of law must be respected. I've accepted this as a given. However, it's my personal stance that the rule of law is not absolute. This stance is the result of a strongly held conviction that there is a moral foundation to the law, but that the law can be subverted from that morality to be used to spread injustice the same way any tool created by man can be used for an immoral purpose.

I'm curious as to other members stance on the rule of law. I've seen post in many of the forums that lead me to conclude there are a number of different stances, and I admit to curiosity about why people think differently on the subject than I do. As a student of philosophy I know that the criticism of others is usually the best way to refine your own ideas, arguements, and beliefs. So, please share.

On a side note, I'd like to say that this post is not intended as some kind of trojan horse for a call to arms or similar action. The goal is nothing more than a healthy debate about the rule of law. Whatever actions one may think are necessary in order to combat injustice are another subject entirely.
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Old November 27, 2008, 10:42 PM   #2
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rampage841512, your question is difficult to answer because you do not define what you mean by the term "rule of law."

The rule of law, in its most basic form, is that everyone is subject to the law and the law reflects the wishes of the people. Should the rule of law be respected at that level? I think so. If the people wish to change a law, they can do so. However, widespread failure to respect the law results in anarchy and a breakdown in society.

Over time, people have tacked additional meanings onto the rule of law. For instance, some believe that the law must reflect certain moral elements, such as individual equality. The problem with defining the rule of law in that way is that different people have different views on morality. Thus, some believe that if the law does not meet their standards of morality, they are justified in ignoring the law. Again, if enough people ignore the law, there is anarchy.

In my view, the proper approach in a society subject to the rule of law is to respect existing law, but work to change the law if you do not like it.
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Old November 28, 2008, 07:28 AM   #3
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curiosity about why people think differently on the subject than I do
because thats the way it is, rampage841.
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Old November 28, 2008, 11:00 AM   #4
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We can only wonder how our lives would be different if congress and the courts stuck to the letter of the rule of the supreme law of the land as codified by the US Constitution. Unfortunately both institutions have taken the approach these rules of law my be twisted or even ignored to allow what some in those institutions feel are higher moral purposes. One only needs to look at the the 10th Amendment to realize that most of what have become accepted federal government functions are in fact illegal.

As far as lesser laws go we have the centuries old concept of jury nullification. The idea that if a jury feels that a law is wrong or unfairly applied that it may find a defendant not guilty. During the 1960s and early 1970s the government and the courts became appalled that a few war protesters were getting off, and perhaps felt that their majesty and authority were threatened by this democratization of the courts. That's when limits began to be placed on what were allowable defenses in court. This has progressed to the point that a defendant and his/her attorney may be held in contempt of court for mentioning the concept in the presence of a jury, or introducing a defense that may be deemed politically incorrect or that challenge the morality of the law itself.
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Old November 28, 2008, 11:30 AM   #5
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This stance is the result of a strongly held conviction that there is a moral foundation to the law, but that the law can be subverted from that morality to be used to spread injustice the same way any tool created by man can be used for an immoral purpose.
Under what circumstances is it acceptable to spread injustice or to be used for an immoral act? None.
The moral foundation is exactly that; a foundation based upon absolutes and morals.
Murder is always wrong. That is an Absolute. This does not mean that killing in self defense is wrong.
The founding fathers understood this concept better than the majority of modern Americans. Absolutes and morals are the basis for the Bill of Rights.
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Old November 28, 2008, 03:40 PM   #6
rampage841512
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I've always considered the rule of law to be the principle that the law must be followed at all times. It is generally accepted to be an absolute, with the understanding that the legal system you are bound to is just. What happens to the rule of law, or your conception of it, when the legal system you are bound to is unjust, whether in part or in whole?
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Old November 28, 2008, 05:05 PM   #7
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Murder is always wrong.
But is it?

Would murdering a Hitler or Stalin be morally wrong or merely illegal?

If Ted Bundy had walked on a technicality, would murdering him to save more women from being raped and killed be wrong?

One of the reasons it is legal for a LEO to use deadly force to stop a fleeing felon not for self-defense, but to protect society from what that criminal *may* do in the future.
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Old November 28, 2008, 05:11 PM   #8
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We can only wonder how our lives would be different if congress and the courts stuck to the letter of the rule of the supreme law of the land as codified by the US Constitution. Unfortunately both institutions have taken the approach these rules of law my be twisted or even ignored to allow what some in those institutions feel are higher moral purposes. One only needs to look at the the 10th Amendment to realize that most of what have become accepted federal government functions are in fact illegal.
Rule of Law means that it ain't what you think is right or moral, but what the Courts say is right or moral

And I understand the dangers of that. But the converse is worse.

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Old November 28, 2008, 07:36 PM   #9
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I don't think the concept of "rule of law" can have any exceptions. I don't see how one could view it differently than another. People can and do disrespect the law to (often successfully) achieve their goals. Personally, I like to think I follow the rule of law and wish others didn't get their way by circumventing it... at least until I can no longer tolerate a particular law!

... and therin lies the problem.... I know...
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Old November 28, 2008, 07:39 PM   #10
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One of the reasons it is legal for a LEO to use deadly force to stop a fleeing felon not for self-defense, but to protect society from what that criminal *may* do in the future
The part about 'may do' is totally incorrect and will land the LEO in prison.

Murder is defined as the taking of innocent life. It does not apply to klling soldiers in war, fighting terrorists, killing an intruder, or killing a person that is committing a violent crime against another.

Quote:
If Ted Bundy had walked on a technicality, would murdering him to save more women from being raped and killed be wrong?
Yes, that is vigilantism. Unfortunately, we have a legal system that favors technicalities over justice. The purpose of the Bill of Rights is to protect the population as a whole, but at the expense of occasionally the guilty go free. It is not perfect, but it is better that occasionally a guilty person goes free than for an innocent person to be incarcerated.

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Old November 28, 2008, 07:49 PM   #11
Hkmp5sd
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The part about 'may do' is totally incorrect and will land the LEO in prison.
Please explain. If a LEO is chasing a person known to have committed a crime and is at the point of losing the guy, shoots the guy to prevent his escape, that meets none of your "not murder" criteria. The LEO isn't in danger, isn't at war, etc. However, it is a legal shooting (at least in the state I live in). It is totally legal to shoot a fleeing felon to prevent his escape. If the guying isn't actually committing a crime (other than running from a LEO), the only reason the cop has to shoot him is to prevent anything he may do in the future. You know, the "danger to society" clause.


If "rule of law" was absolute, there would not be this thing called "Jury Nullification."

Nothing is absolute ('cept maybe vodka).
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Old November 28, 2008, 07:51 PM   #12
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If a LEO is chasing a person known to have committed a crime and is at the point of losing the guy, shoots the guy to prevent his escape, that meets none of your "not murder" criteria. The LEO isn't in danger, isn't at war, etc. However, it is a legal shooting
Not in most states. In most states that officer would be in prison; especially if the guy dies.
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Old November 28, 2008, 07:55 PM   #13
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Then why to the guards on prison walls carry guns? To protect escaping felons from rattlesnakes?
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Old November 28, 2008, 07:59 PM   #14
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DNA testing has proven that hundreds of convicted rapists were/are innocent. If the accused rapist had been acquitted, but the public (maybe a relative of the victim) was sure that he was off on a technicality, and someone (the relative of the victim) killed the accused rapist, would that be acceptable?

That is why we must have absolutes and morals as the basis and foundation of the law.

Situational ethics would absolve the relative of guilt and would encourage his actions against the accused.

Many of the falsely imprisoned rapists were railroaded by dirty cops that knew that there was no case, but they fabricated evidence and coerced confessions just to close the case and give the victims and their families peace and closure; at the expense of accused. How did they justify it? Well he was going to commit a crime anyway. He was scum that we needed to get off the street. etc
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Old November 28, 2008, 08:03 PM   #15
A/C Guy
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Then why to the guards on prison walls carry guns? To protect escaping felons from rattlesnakes?
Here in Az, Yes.

The difference of course is that those escaping criminals were tried and found guilty. The main purpose of the weapons are to protect the guards as they are greatly outnumbered by the convicts. Guards do not shoot fleeing convicts in the back.
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Old November 28, 2008, 08:19 PM   #16
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Guards do not shoot fleeing convicts in the back.
In Florida, they Do.

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776.05 Law enforcement officers; use of force in making an arrest.—A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:

(1) Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;

(2) When necessarily committed in retaking felons who have escaped; or

(3) When necessarily committed in arresting felons fleeing from justice. However, this subsection shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and:

(a) The officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or

(b) The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.
Quote:
776.07 Use of force to prevent escape.—

(1) A law enforcement officer or other person who has an arrested person in his or her custody is justified in the use of any force which he or she reasonably believes to be necessary to prevent the escape of the arrested person from custody.

(2) A correctional officer or other law enforcement officer is justified in the use of force, including deadly force, which he or she reasonably believes to be necessary to prevent the escape from a penal institution of a person whom the officer reasonably believes to be lawfully detained in such institution under sentence for an offense or awaiting trial or commitment for an offense.
Sorry for the thread veer....back to On Topic.
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Old November 28, 2008, 09:29 PM   #17
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DNA testing has proven that hundreds of convicted rapists were/are innocent.
Hundreds? Let's see 'em! I think it rather rare, but I'm always open to being educated.
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Old November 28, 2008, 10:19 PM   #18
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Hundreds? Let's see 'em! I think it rather rare, but I'm always open to being educated.
Hundreds...

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Originally Posted by Innocence Project
There have been 225 post-conviction DNA exonerations in United States history. These stories are becoming more familiar as more innocent people gain their freedom through postconviction testing.
The Innocence Project is privately funded the resources that they can bring to bear to free the wrongly convicted are limited. They are also hindered by prosecutors that fight tooth and nail to keep DNA evidence from being tested and admitted in an appeal. Keeping these facts in mind I think it's safe to assume that they have barely scratched the surface of a national tragedy.
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Old November 28, 2008, 11:15 PM   #19
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OK... I'm open to being educated, but how many of those "exonerated" by DNA evidence are actually guilty nonetheless? Just because a defense attorney can convince a judge/jury/prosecutor that his client's DNA was not present, or the sample was tainted, or there was other evidence, doesn't mean the "client" didn't commit the rape.

There will always be those wrongfully convicted of crimes and that's a sad reality, but I'd guess (just a guess) that the majority of cases taken up by the Innocence Project involve a guilty party and that party is sometimes set free due to some technicality. Not to say that they don't occasionally manage to free an innocent party, but I'm skeptical.

Some suspect every conviction, some think the jury usually gets it right (or at least requires evidence beyond a reasonable doubt)... I'm of the latter mind set.
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