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It Is Necessary to Place Limits on Democracy in Order to Promote Human Rights?

Posted on February 14, 2019 in Uncategorized

Ex Justice Michael Kirby defines democracy in Australia as:

[a] sophisticated form of government which involves the general ability of the will of the majority to prevail but in a legal and social context in which the rights of vulnerable minorities are respected and defended

It must be argued that this succinct statement illustrates, expressly and implicitly, the potential for an inextricable relationship between democracy and human rights. The defending of human rights can only exist within a democracy, and conversely, the ability of anyone to raise their hand and claim a human right to be defended is a fundamental element of a democracy.

What are “human rights”? It must be argued that human rights are a mere concept, intangible ideals, principals within the realm of philosophy. The Universal Declaration of Human Rights says:

All human beings are born free and equal in dignity and rights

It must be argued that there is a distinct difference between the concept of human rights and the interpretation and application of human rights in a social context.

The interpretation of our human rights can be derived from the UDHR, other HR treaties and subsequently our own state and federal laws. However the language used in these instruments is left intentionally vague and ambiguous to allow different meanings to be inferred from the words. As time progresses and the nature of a normative society changes, values, deviant and moral actions change, the law changes slowly after to accommodate for the change in society. Drinking alcohol and driving is a good contemporary example of this. When talking about The Constitution Justice Kirby says:

The words [of the Constitution] take on their colour with the change in circumstance and attitudes

So we are able to apply the concept of rights to our society through the judicial and legislative processes, which are the checks and balances within a democratic system. For example, we have a right to free speech at Article 12:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

But does that mean we are allowed to say anything we want, wherever we want? It would have to be argued that we do not as various pieces of legislation have been enacted to stop “hate speech” and “defamation“. This must be argued to be a policy consideration and a formal social control mechanism. This illustrates how human rights in their purest form have restrictions put on them when applied in a social context. Anti-Terrorism legislation in Australia and across the world has seemingly trampled over human rights with arguably deplorable and undemocratic notions such as preventative detention and the abandonment of due process of law. However it should be argued that this type of legislation is a reaction to a real or perceived problem to preserve public safety. The question has to be asked if this is an acceptable trade. It was Benjamin Franklyn who wrote:

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

Is it necessary to restrict the democratic voting rights of offenders in prison? It must be argued that the democratic right of citizens of a country to have their say in the election process is a fundamental cornerstone of democracy and without it the country wouldn’t be a democracy. The Constitution Act implies this at s7 and s24 that the Senate and the House of Representatives be:

directly chosen by the people

It should be argued that the limits of this democratic process to certain members of society have been placed because of policy considerations involving social normative ideals. The “moral panic” drummed up in the press, fear and ignorance of the whole prison / rehabilitation process is a contributing factor.

It must be argued that the concept of eligibility is very important in the application of human rights in a democracy. Prisoners for example, are not eligible to vote, not eligible to liberty and so on. They have essentially lost the ability for those rights to be applied to them under certain circumstances for the sake of social order, punishment and protection. Does this concept of eligibility limit democracy? It should be argued that an action that is for the benefit of the majority of people and backed by the majority of people is a democratic action. As Justice Kirby says in the opening definition, democracy is the ability of the will of the majority to prevail.

What is “the majority“? The majority of any group is a complex and difficult question. There is the actual number of eligible voters, and then a vast and varied amount of subgroups within that number. What about the majority of Shiites and Sunny Muslims within that group, and so on. It should be argued that access to rights is based upon a number of normative, social, political and cultural eligibilities. Using the objective standard of “the reasonable person“, in Australia this is said to be “The man on the Bondi Tram” it is possible to start constructing an argument about which rights are to be assigned to which people, or rather the eligibility of people to have certain rights applied to them. For example the idea of death as punishment for apostasy, which is implied in the Koran could be argued to be a right under both Sharia law and under Article 18 of the UDHR which says:

Everyone has the right to freedom of thought, conscience and religion… and freedom… to manifest his religion or belief…

But Article 18 also says:

this right includes freedom to change his religion or belief.

It must be argued that no “reasonable” person could agree to death, the death penalty is abolished in Australia and Article 18 mandates the right to change religion, therefore, even though the concept of that right might exist, they would not be eligible to the application of this right in Australia for societal, policy and religious reasons and a democratic consensus by the people.

Reading a speech by Justice Michael Kirby he said:

There is a tension, even a contradiction, between democracy and protection of fundamental human rights. The tension arises because, if human rights are truly “fundamental”, even democracy should not be able to override them. In this sense, fundamental human rights impose a check on democracy, and deliberately so.

The idea of a “fundamental” set of human rights is a great idea and arguably exists in the philosophical realm of human rights as something to strive toward; however it must be argued that the application of these rights across the world would take on all different shapes and colours based upon social mores and context within the society. As it says in Melbourne University Law Review:

It is a myth that rights are ‘absolute trumps’ over majority preferences, aspirations or desires. In fact, most rights are not absolute. Under human rights instruments, rights are balanced against and limited by other protected rights, and other non-protected values and communal needs. A plurality of values is accommodated, not just rights. Moreover, in jurisdictions with human rights instruments that adopt an institutional dialogue model, the specific balance of the pluralistic values is assessed from a plurality of institutional perspectives – usually the executive, the legislative and the judicial.

When is it OK to limit democracy in favour of human rights? It could be argued that during war, genocide or other international atrocities it may be permitted for a democracy to act in an un-democratic way. For example, conscription and forced military service, frozen assets and restrictions on the free movement of peoples.

Another argument for a limit placed on democracy came about in the Northern Territory Intervention by the Howard Government in 2008. To enable them to implement this intervention they had to suspend the Racial Discrimination Actto allow this to occur. Allegedly, the rights of vulnerable members in those societies, namely women and especially children, needed protecting so much that the government had to suspend a racism act to enable this to happen. It would have to be strongly argued that this is in fact a racist action, bearing in mind that it would have been an illegal action under the Act. The idea of a government suspending a certain law to enable them to breach that law seems to be a very dubious and un-democratic thing to do.

In conclusion it must be argued that in some instances there may be some cause to limit the democratic process to all or certain members of society to enable the government to do some things of national importance. It should be argued that these instances are in fact extremely rare and the opposite is far more common. As society dictates, the will of the normative majority seems to supersede the application of rights to some members of the community, some of the time.

However, it could also be argued the opposite way, in that because the consensus of the public overrides the application of some human rights, if these rights are to be implemented, that the executive or legislature would have to ignore the will of the majority to get them passed. It should be argued that this is a strong case for limiting democracy to promote human rights, but it must be pointed out that this is in fact an action which very seldom happens.

Bork-Peril Justice

Posted on February 9, 2019 in Uncategorized

On June 6, 2007, Robert H. Bork caused to be filed a lawsuit in the Federal Court for the Southern District of New York, wherein he is the named Plaintiff, and the Yale Club of New York City is the named Defendant.

Mr. Bork’s cause of action arises out of an incident which occurred on June 6, 2006, on which date Mr. Bork was visiting the Yale Club, a private club, in New York City, to deliver a speech at a luncheon sponsored by the New Criterion Magazine. It is perhaps interesting to note that Mr. Bork, though not a Yale alum, was a professor at the Yale School of Law during the Sixties and Seventies. He is currently a Professor of Law at the Ave Maria Law School located in Ann Arbor, Michigan. It does not appear that he was on medical leave during the 2006-2007 academic year.

Mr. Bork’s complaint was not verified, but was signed by his attorneys on his behalf. Your correspondent is unfamiliar with New York legal procedure. It is unknown whether there is a one year statute of limitations on tort actions in New York, and the suit was started on the last possible day it could successfully been brought, or if the filing on the one year anniversary of Mr. Bork’s injury was merely coincidental.

While attempting to ascend the dais on the date in question, Mr. Bork lost his balance, and fell backwards, hitting his left leg on the subject dais and hitting his head on an inconveniently placed heat register. While other, lesser, non-originalist, non-textualist men may have been deterred from a further assault on the lofty height, Mr. Bork, being a trouper, was made of sterner stuff. Though he may have been bloodied, he was unbowed. He raised himself up from the shambles of his fallen self, ascended that self-same dais, and delivered his oration like a good ‘un. It is unknown whether the head injury affected the form or content of the speech. I suspect that, after his talk, and after thunderous applause, Mr. Bork descended the dais, unaided, shook the hands of many well-wishers, and left the premises. One assumes, but admittedly does not know, that Mr. Bork, as a Virginia resident, employed in Michigan, was paid some small stipend for his comments.

The members of the Yale Club may well have been distressed, if not confused to read the subsequent complaint served on the organization by Mr. Bork’s attorneys. The complaint alleges that the Yale club failed to provide a safe dais or stairs or a handrail between the dais and the floor. Also, the dais was at an unreasonable height from the floor.

Mr. Bork’s complaint contains two counts, one alleging negligence and one alleging gross negligence. The allegations of fact in both counts are exactly the same in both counts except the words “wantonly, willfully and recklessly” are substituted in Count Two for the word “negligently” in Count One.

Mr. Bork alleges a leg injury (apparently the injury to his head from the heat register resolved), causing a large hematoma, which later burst, requiring surgery. Excruciating pain resulted, which prevented him from working his “typical” schedule after the injury. He also endured months of “relative inactivity” due to his injuries, and was “largely immobile” for some months.

Medical bills were incurred, and some lost income alleged, though, as indicated, he gave his speech that day, and was not listed as “on medical leave” on the Ave Maria website.

What does the complaint indicate that Mr. Bork, the accident victim, deserves in order to make him whole for this injury, caused by the negligence and willful, wanton, and reckless conduct of the Yale Club:

1. $1,000,000, and

2. Punitive damages, and

3. Pre-and post-judgment costs, interest and attorney fees.

For those who may not know Mr. Bork, he has served as Solicitor General of the United States, acting Attorney General, and Federal Court of Appeals Judge. In 1987, he was nominated for the US Supreme Court by President Reagan. His nomination was vigorously opposed by many groups, and the Senate eventually rejected his confirmation. The word “Bork” has now become a verb and as of 2002 has appeared in the Oxford English Dictionary. The word is defined: “To destroy a judicial nominee through a concerted attack on his character, background and philosophy.” During the confirmation process, opponents went so far as to obtain Mr. Bork’s video rental records. It is some interest to note that one video rented by Mr. Bork was the Marx Brothers’ “A Day at the Races”.

So we see that even highly educated, intelligent persons with long pedigrees of public service like Mr. Bork can become victims of negligent and reckless actions by organizations and corporations.

While it appears that Mr. Bork has much in common with many other persons injured apparently through no fault of their own, we should not separate Robert Bork the victim from Robert Bork the legal scholar and philosopher, and former judge, quite yet. For while this case may be the first occasion where Mr. Bork has been a part of the legal system in the role of injured plaintiff, he has previously expressed some definite opinions on the subject.

Mr. Bork has long been an advocate of “tort reform” measures to restrict the rights of injured persons. As recently as 2002, in an article he authored in the Harvard Journal of Law and Public Policy, Mr. Bork that Congress, by legislation, displace state tort law. He admitted, however, that the framers of our Constitution did not grant Congress such power. Mr. Bork wrote:

“State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress’s power, may now be constitutionally appropriate.”

Such a federal tort system would, Mr. Bork believes, combat the problem of frivolous claims and excessive punitive damage awards that apparently plague state courts.

Mr. Bork has long been an advocate of judicial restraint. He has criticized judges who “legislate from the bench.” Reinterpreting the US Constitution to grant Congress powers admittedly not included by the Constitution’s authors sounds like a liberal dose of judicial activism to me.

Admittedly, I know very little about the facts of Mr. Bork’s accident. If the Yale Club did not provide a means of ascending a dais and if it was a very high step and if there was no support provided, I can see how a case of negligence could be proven. No argument from me that the claim itself is frivolous. And, if Mr. Bork can prove his case, and if he incurred medical expenses, and wage loss and pain and suffering, he is entitled to reasonable compensation from the responsible parties. That seems to make common sense. But what makes this case especially interesting, is the nature of the claims a person of
Mr. Bork’s philosophy makes against the parties he holds responsible and the relief to which he claims he is entitled. It is also equally fascinating to consider what relief Mr. Bork get if his accident occurred under similar circumstances at the Detroit Athletic Club, Detroit, Michigan, the state where Mr. Bork is employed as a Professor of Law. And, coincidentally, a state where much of the indigenous judiciary has made Mr. Bork’s legal philosophy (or what they thought it was), the law of this state.

First, let’s take a closer look at Mr. Bork’s New York complaint. Quite honestly, if there is negligence here, it is because someone at the event didn’t think a step or railing to the dais was needed. Or forgot to even think whether one was necessary. Or accidentally removed on that was already there. Simple carelessness. Well, that is not quite good enough for Mr. Bork, the advocate of restraint, and the opponent of the frivolous claim. He alleges that the actions of the Yale Club were not merely negligent or careless, but willful, wanton and reckless. Maybe I misunderstood the facts. Maybe a member of the Yale Club threw him off the dais.

Anyhow, the actions of the Yale Club were so shocking the Mr. Bork does not merely want reasonable compensation ($1,000,000), but Mr. Bork wants the Yale Club to pay punitive damages, which of course he will be happy to keep for himself.

The reader might say that if the law in New York is so screwed up so as to allow people to collect such damages, why should Mr. Bork, merely because he doesn’t personally believe in such remedies, be precluded from obtaining all allows.

I would agree. It takes a man of strong character to let his personal beliefs restrain him from glomming onto all the bucks he can.

Except for this. Mr. Bork asks for punitive damages. New York law does not allow them. Mr. Bork asks for pre-judgment interest. New York law does not allow it. Mr. Bork asks for attorney fees. New York law does not allow them. Mr. Bork asks for $1,000,000 compensatory damages in his complaint. A federal complaint need only claim damages of $75,000 to invoke the jurisdiction of the court.

Now if these are the kind of remedies Mr. Bork wants included in the national tort law legislation he advocates, he might find that he has a lot more support among plaintiff attorneys than he thought.

Second, let’s move the location of Mr. Bork’s accident to the great state of Michigan, where Professor Bork helps develop the skills of future members of our state Bar.

In Michigan, the jury Mr. Bork demanded in his complaint would never hear his case. Mr. Bork would not get compensatory damages, much less punitive damages, even if the owners of the club admitted negligence. Mr. Bork could have fallen and killed himself due to the admitted negligence of any and all possible defendants, and Mr. Bork’s estate would be entitled to nothing other than possibly the bill for cleaning his blood off the dais.

Like Mr. Bork, many members of the Michigan Supreme Court are members of the Federalist Society, long-time advocates of “tort reform”. Mr. Bork’s judicial philosophy is called “Originalism.” The judicial philosophy of the Michigan Supreme Court majority is called “Textualism.” They are merely different euphemisms to label what is the worst kind of judicial activism as judicial restraint.

Well, cases decided by Mr. Bork’s adherents on the Michigan Supreme Court would make short work of Mr. Bork’s complaint. The height of a step is something Mr. Bork could see, so it was up to him to make sure he ascended it without injuring himself. The club has no duty to provide a step or railing or warning or anything else. After the fall, Mr. Bork ascended the dais without falling again, which is elegant proof that he should have done it without falling the first time.
If Mr. Bork was to argue that there was no other way to get onto the dais other than climbing an excessively high step, he would be no further ahead. Michigan cases would inform him, as his case was dismissed, that he was not required to ascend the dais at all. He could have spoken at floor level. He could have refused to speak at all, or he could have had the event cancelled and rescheduled for another day when there was a step or railing to the dais. If he had simply followed one of those three available alternate courses of action, he would not have fallen. If he hurt himself he has only himself to blame.

If Mr. Bork did not like the result of his Michigan case, he could appeal its dismissal. And some time down the road after an Appeals Court upheld the dismissal, Professor Bork might find himself using his own case to teach his Ave Maria law class the advantages of “tort reform.”

Robert Bork is a fine teacher. He teaches us a great many things by his actions in this case. First, the principles of tort reform apply to others, not to me. Secondly, frivolous suits are those brought by everyone–else. Thirdly, legal philosophy be damned–show me the money!!

May there always be men and women who will protect the common citizen from those who think them worthy of no consideration.

From the Originalists and the Textualists, Good Lord, deliver us. And, as they might say at the end of class at Ave Maria Law School—Amen.

Why Earn a Master’s Degree in Criminal Justice?

Posted on February 5, 2019 in Uncategorized

The events of September 11, 2001, which sent ripples across our entire society, forever changed the way the world, views safety. As a result, the criminal justice system has adjusted to the new challenges both from inside and out of the US borders.

Along with law enforcement, the concept and need for homeland security have become more fundamental principles with law enforcement agencies from the federal, state and local levels.

A criminal justice degree can position candidates to perform a variety of services for the public. It’s an extraordinary and exciting field, and on any given day may entail overseeing the protection of life and property. Quite, often, the job can be dangerous and stressful for industry professionals.

This field is quite often seen as a social science whose purpose it is to identify and explain criminal behavior patterns. The end result is to analyze, understand and better control crime and delinquency in society.

The curriculum is designed to study the criminal, crime, and the criminal justice system by taking an interdisciplinary approach, which combines legal studies, philosophy, public administration, urban studies, forensic science and much more.

It’s a commonly held philosophy that if crime can be better understood, the causes of criminal activity,,the legal processes and treatment of offenders can be progressive and far more effective.

Education for the Master of Science in Criminal Justice Degree may contain, but may not be limited to training in the following areas: Correction Systems and Institutions, Crime and Criminology, Ethics and Criminal Justice, Applied Research Methods, Statistics for Criminal Justice, Critical Issues in Criminal Justice, Law and the Legal System, Substance Use and Victimology.

Criminal Justice graduate programs typically cover law, criminology, public policy, criminology and other related issues. Master’s degree programs usually tend to overlap sociology, social work, population studies and political science. The (MS) Masters or PhD can also lead to a career as a probation officer, detective, probations officer or more. Like any profession, employment depends on preparation, skills, experience, work attitude and local market and other factors.

Finding the right venue to earn a Master’s degree in this field can be just as important as the degree itself. Institutions providing course study should be accredited members of ACICS.

The smaller your class size, whether online or in a traditional setting, learning becomes easier and more enjoyable the more you can interact with classmates and the instructor. Hopefully, you will gain the initiative, independence and critical thinking skills necessary to be a success in class and on the job.

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