Monday, September 20, 2010


The kindling:
"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." -Justice Clarence Thomas on mens rea requirements in Criminal Law

"Mankind might still be in Eden, but for Adam's biting an apple." Welch v. State, (1970) in regards to causation of death requirements. e.g., The deceased would not be so "but-for" the actions of the defendant.

We live with a legal system built on lingering traditions of a religious past which now, outdated, requires amending by those who claim a secular living. As though we have built a square mold but are trying to create circles from them, we are constantly having to cut away pieces that no longer fit our desired design instead of choosing to rebuild the mold. though, could we have a legal system with which people approved of if it were devoid of 'morality'?

Today while eating lunch at the local cafe I witnessed two probable law students bickering. One over whether he thought intelligence necessitates 'goodness' the other arguing that even 'evil doers' can be intelligent. The 'conversation' inevitably broke down into a primitive assault on the first student's belief in God. I couldn't help but feel defensive for the first student whom, despite religious belief inherently with which I disagree, at least, his belief was consistent. The other student spouting nonsense about other religions and trying to catch the first student in a fallacy by conflicting definitions of commonly misunderstood words was, to me, a sophist practicing his trade and not someone who legitimately seeks understanding.

When we recognize the inevitable irrationality of God as truth do we not give up the right to claim 'morality', 'goodness' and 'evilness'?

The blaze:
What do people like you and me do with the fact that we may find a concept like morality, 'vacant'. We are setting ourselves up to work in a profession that depends to a certain degree on concepts like morality and justice and depends further on a common understanding of the meaning of those concepts. Sure, we can intellectualize and rationalize the terms to make them seem more realistic to ourselves but what did our law-makers intend? As it is so often discussed in court opinions, the law-makers intent is the end all for discussion when it comes to legality. Are words like this chosen precisely because they can be misconstrued and redefined as our society evolves (as we have discussed before). Or do we think the majority of legislators have a fairly nihilistic disposition and they choose words like this to placate to the mindless majority? Or are they (legislators) a part of the religious majority (not the same as the mindless majority)? Is it incredible foresight that grounds our legal system or religious tenacity?

Does it matter?

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