Unit 2

1. Unit 2 Discuss Assignment, Founding Documents (for Assignment) etc.

2. Of the NATURE of LAWS in general. • INTROD. • §. 2. • THIS will naturally lead us into a fhort enquiry concerning the nature of fociety and civil government; and the natural, inherent right that belongs to the fovereignty of a ftate, wherever that fovereignty be lodged, of making and enforcing laws. • THE only true and natural foundations of fociety are the wants and the fears individuals. Not that we can believe, with fome theoretical writers, that there ever was a time when there was no fuch thing as fociety; and that, from the impulfe of reafon, and through a fenfe of their wants and weakneffes, individuals met together in a large plain, entered into an original contract, and chofe the talleft man prefent to be their governor. This notion, of an actually exifting unconnected ftate of nature, is too wild to be ferioufly admitted; and befides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their prefervation two thoufand years afterwards; both which were effected by the means of fingle families. Thefe formed the firft fociety, among themfelves; which every day extended it's limits, and when it in • .P 48

3. grew too large to fubfift with convenience in that paftoral ftate, wherein the patriarchs appear to have lived, it neceffarily fubdivided itfelf by various migrations into more. Afterwards, as agriculture increafed, which employs and can maintain a much greater number of hands, migrations became lefs frequent; and various tribes, which had formerly feparated, reunited again; fometimes by compulfion and conqueft, fometimes by accident and fometimes perhaps by compact. But though fociety had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the fenfe of their weaknefs and imperfection that keeps mankind together; that demonftrates the neceffity of this union; and that therefore is the folid and natural foundation, as well as the cement, of fociety. And this is what we mean by the original contract of fociety; which, though perhaps in no inftance it has ever been formally expreffed at the firft inftitution of a ftate, yet in nature and reafon muft always be underftood and implied,

4. LAW, in it's moft general and comprehenfive fenfe, fignifies a rule of action; and is applied indifcriminately to all kinds of action, whether animate, or inanimate, rational or irrational. Thus we fay, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prefcribed by fome fuperior, and which the inferior is bound to obey. • THUS when the fupreme being formed the univerfe, and created matter out of nothing, he impreffed certain principles upon that matter, from which it can never depart, and without which it would ceafe to be. When he put that matter into motion, he eftablifhed certain laws of motion, to which all moveable bodies muft conform. And, to defcend from the greateft operations to the fmalleft, when a workman forms a clock, or other piece of mechanifm, he eftablifhes at his own pleafure certain arbitrary laws for it's direction; as that the hand fhall defcribe a given fpace in a given time; to which law as long a the work conforms, fo long it continues in perfection, and anfwer the end of it's formation.

5. If we farther advance, from mere inactive matter to vegetable and animal life, we fhall find them ftill governed by laws; more numerous indeed, but equally fixed and invariable. The whole progrefs of plants, from the feed to the root, and from thence to the feed again; --- the method of animal nutrition, digeftion, fecretion, and all other branches of vital oeconomy; --- are not left to chance, or the will of the creature itfelf, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator. • THIS then is the general fignification of law, a rule of action dictated by fome fuperior being; and in thofe creatures that have neither the power to think, nor to will, fuch laws muft be invariably obeyed, fo long as the creature itfelf fubfifts, for it's exiftence depends on that obedience. But laws, in their more confined fenfe, and in which it is our prefent bufinefs to confider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the nobleft of all fublunary beings, a creature endowed with both reafon and freewill, is commanded to make ufe of thofe faculties in the general regulation of his behaviour.

6. The Council has asked you to prepare a report that concludes with a preliminary list of recommended individual rights that you think would be important for their nation, based on your experiences with them while you were developing the constitution. • The report you prepare will be the basis for your continued work with the Council to assist them in the development of a government based on sound constitutional principles.  • Instructions:You will prepare a 5-7 page report for the Council of Elders, which consists of three parts.In the first part of your report, you will compare and contrast the statements of individual rights of at least three of the following:

7. Code of Hammurabi ca 1760 B.C.E. • Magna Carta 1215 • English Bill of Rights 1689 • Virginia Declaration of Rights 1776 • U.S. Bill of Rights 1789 • Declaration of the Rights of Man 1789 • Universal Declaration of Human Rights 1948 (United Nations)

8. In the second part of the report you will discuss the philosophical underpinnings (e.g., natural law and legal positivism) of the historical legal systems you've identified. You may read or research anything that will be useful in your study. For example, you may draw upon your studies in LS500 related to the Declaration of Independence and the Mayflower Compact or Principles of Constitutional Law or Understanding Jurisprudence may assist you in your thinking. • In the last part of your report, you will recommend a preliminary list of at least five individual rights you think are appropriate for the Island Nation. As part of this recommendation you must provide the Council with a rationale about why you chose each of the rights that you've identified so that they can make an informed decision about your recommendations.

9. Petition of Right • VII. And whereas also by authority of parliament, in the five-and-twentieth year of the reign of King Edward III, it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Charter and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm, or by acts of parliament: and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless of late time divers commissions under your Majesty's great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.

10. VIII. By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to have been judged and executed. • IX. And also sundry grievous offenders, by color thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretense that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.

11. X. They do therefore humbly pray your most excellent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by color of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land. • XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people . . .

12. Was the Petition of Right a precursor to the Declaration of Independence? What individual liberties concerned the freemen of 1628? How did they expect the liberties they sought would fit with a monarch who considered his rights to emanate from God?

13. The Reverend Martin Luther King was in a Birmingham Jail in 1963 for what was alleged to be civil disobedience. A group of clergymen from Alabama published a statement calling Dr. King�s actions �unwise and untimely�. Dr. King responded saying that he believed the clergymen to be men of good will and that the criticisms were sincerely set forth. He went on to comment that he was in Birmingham because there was injustice there and that all communities are interrelated. • Dr. King believed that injustice anywhere is a threat to justice everywhere. His argument to the clergymen was that efforts at civil disobedience and demonstrations pale in comparison to the harm being suffered by black citizens in the city. Dr. King suggested that the goal of the demonstrations was to open a negotiation to effect changes in the system. • The clergymen ended their letter by commending the Birmingham policy for keeping order. • In light of these events, consider the following questions and discuss with your classmates.

14. e focus of Unit 2 is on the concept of rights. In preparing for this unit�s discussion and Town Hall, it is important to understand that as Americans we view many issues in terms of rights. That is, political or social discussions turn into legal discussions and are framed into �rights�. This unit picks up on that theme and develops it through the readings, discussion board, and written assignments. The Town Hall discussion should be fashioned in a similar format. Chapter 10 in Understanding Jurisprudence provides an excellent starting point for a theoretical discussion of rights and should be consulted in preparing for your Town Hall discussion. However, instructors are cautioned that Hohfeld�s scheme of jural relations may be difficult for students to understand. So any discussion related to corresponding rights, privileges, and duties using Hohfeld�s scheme should be of the most general nature. • Instructors should not stop with just a theoretical discussion of rights and should also incorporate practical discussions related to human rights and constitutional rights. For instance, a review of the Magna Carta, the Declaration of the Rights of Man and of the Citizen in France in 1789, the U.S. Bill of Rights, and the Universal Declaration of Human Rights from 1948 should be part of the discussion. Instructors are encouraged to weave in contemporary discussions like the tension between the fight against terrorism and the protection of individual rights. • Instructors should also stress the importance of the concept of human rights as one of the greatest discoveries of western civilization. The concept makes little sense unless it is understood as fundamental and inalienable, whether or not these rights are legally recognized and regardless of whether they emanate from a higher natural law. Just as with rights and duties in general, human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill human rights. Contemporary issues can be woven into this discussion as well. • Finally, instructors should discuss remedies as an essential principle of the human rights framework. That is, governments have an absolute duty to make accessible, affordable, timely and effective remedies available to all victims of human rights violations. Remedies can include restitution, compensation, rehabilitation, and guarantees of non-repetition.

15. Is keeping order in a society more important than justice for some of its citizens? Who should decide what is justice � even assuming that any challenge is nonviolent as was Dr. King�s? Who makes that decision and why?