Law And International Law Examples and Topics

The CISG And The Parol Evidence Rule Comparative Analysis

University of Salford Manchester

College of Business and Law

Salford Business School

STUDENT ID [00495878]

Muhanad AL-Turbaq

The CISG and the Parol Evidence Rule Comparative Analysis

LLM International Commercial Law

Dissertation

Word Count: 12321 words

Abstract

According to the international text of the Convention, interpretation of a contract revolves around intention of the parties; however, this intention must be teased out as per the Article 8 of CISG. As to the interpretation of the contract, the evidence that the parties had relied upon for formation of the contract becomes inadmissible. In this regard, the courts must examine the extinction evidence in order to determine that if the contracting parties have used the words in question in one sense only; by doing so, it would be possible for the courts to give effect to the dictionary meaning of the word as a result of the common intention of the parties. The above argument is of critical importance due to the fact that the actual and presumed assumptions of the contracting parties must be differentiated from each other. It is of great importance that the subjective what actual intention of the parties is sought. No contract will be concluded despite the fact that an informed bystander concluded that a contract is formed looking at the words if the parties were aware that they were playacting. It demonstrates the problem of applying the objective theory. It brings the discussion to the question that if the presumed or objective intent must be considered if no subjective intent can be established. This paper argues that the subjective intention of parties and the in admissibility of evidence of pre-contractual nature or outdated. For this reason, change is inevitable. Moreover, this paper highlights exchange and bargains as grounds for contracts. In this regard, it argues that the classical theory is outdated and wrong. Thus, there is conflict between the article 8 of the CISG and the Parol rule of evidence. For this reason, different results have been yielded as an outcome of litigation as witnessed in the recent U.S. cases such as MCC-Marble versus Ceramica. However, the common law has tools to bring similar results as under the CISG; such as rectification. Thus, it is high time for the common law to recognize and embrace international trends.

Table of Contents

TOC \o "1-3" \h \u Statement of originality PAGEREF _Toc13401 2

Acknowledgments PAGEREF _Toc22556 3

Abstract PAGEREF _Toc2156 4

List of Abbreviations PAGEREF _Toc2589 6

Chapter 1: Introduction PAGEREF _Toc23771 7

Objectives of Stud PAGEREF _Toc28193 12

Sources of Data PAGEREF _Toc11002 13

Organization of Study PAGEREF _Toc15069 14

Chapter 2: Research and Literature Review PAGEREF _Toc11931 15

Chapter 3: Methodology PAGEREF _Toc17695 30

Chapter 4: Analysis, Discussion and Summary of Results PAGEREF _Toc22668 31

Intention of Parties PAGEREF _Toc21709 31

Interpretation of Contracts PAGEREF _Toc18978 35

Jurisprudence of the CISG PAGEREF _Toc17096 37

List of Abbreviations

CISG = Contract of Sales of International Goods

UNIDRIOT = International Institute for the Unification of Private Law

ULIS = Uniform Law for the International Sale of Goods

ULF = Uniform Law on the Formation on Contracts for the International Sale of Goods

UNCITRAL = United Nations Commission on International Trade Law

Chapter 1: Introduction

The contractual landscape at international level has significantly been changed over time. Primarily, the ascendancy of international commercial laws into modern laws and conventions has played its role in this regard. As a matter of fact, these changes can be viewed as a sea change in the contract law. Since the CISG has become a part of domestic law through ratification, having knowledge of international contract law became imperative.

Several international cases concerning sales of goods across the borders have illustrated this problem. For instance, the facts are simple in the case of Perry Eng. versus Bern old. An Australian purchaser in the south Australian Supreme Court sued the Swiss manufacturer for supplying defective goods. The contract between the two parties provided that the laws of South Australia would cover the dealing between the two contracting parties. However, the judge gave his decision based on an entirely different perspective. According to his decision, the plaintiff’s ability to proceed to judgment has been limited due to the assumption that the South Australian Sale of Goods Act will only be applied on the statement of claim primarily due to the application of CISG. The reason behind the application of the international law over the domestic rules in this case lies on the fact that the domestic law cannot protect itself from the influence of international laws for an indefinite period of time.

For this reason, principles and domestic law must regularly be reviewed in order to remain stepped up with best practices. Moreover, in an attempt to create uniform international laws, a compromise between the leading legal families had to be formed. It is of considerable importance based on the fact that the outcomes of having reached compromises have shown to be workable. Thus, significant international jurisprudence already exists. Furthermore, the noteworthiness of CISG can be demonstrated showing the fact that it has significantly influenced the new Chinese contract law, and has thus become the sales law of the European Union as well.

This dissertation addresses the Parol Evidence Rule, which supports the notion that the intent of contracting parties remains central. Additionally, it accepts the fact that common law demands an objective theory of contract. In general terms, based on this reason, the subjective intent of parties does not remain the focal point of the contract although objectively intent is not common to the contracting parties. This point of view is of critical importance. It emerges from the reforms of the 19th century when the influence of the subjective theory of contract and the Continental writers was well established. However, preposition between the objective and subjective theories remains underway by the end of the century. The classical concept of contract law provides grounds for the objective theory. According to this theory, the contract is between two strangers homogeneous product rejected in a perfect spot market. Given the background of the classical contract theory, the development of Parol evidence rule was inevitable.

The Parol evidence rule lies among the most criticised, litigated, and controversial legal doctrine of the common law. Yet it is an indispensable and integral contract law doctrine. However, the Parol evidence rule remains virtually unknown beyond the boundaries of common law. In its simplest form, the rule states that the complete and final written integration of the agreement between the contracting parties cannot be supplemented, contradicted hot varied by contemporaneous or previous written on oral agreements, representations or understandings due to duress, mistake, absent fraud and any other invalidation clause. The parties make a written instrument concerning the terms and conditions of the agreement between them through the process of integration. Although it is not the only source of terms of the agreement it remains the only recognisable source at law.

The Parol evidence rule is of considerable importance in the American contract law due to the fact that it deals with the most fundamental issues of the contract law, i.e., what does and does not constitute the content of an agreement? In an attempt to answer this very question, Professor Eric Posner effectively illustrated the issue using a figure. An agreement between the contracting parties is often decided over a period of bargaining the terms and conditions of the contract. During this period, the contracting parties discuss various terms, make numerous negotiations, state statements, and reach mutual conclusions. Eventually, the contracting parties reach a set of negotiations. As per the figure illustrated by the professor, C represents the contract whereas S is used for representing all terms and conditions as negotiated, insinuated, and suggested during the formation of the contract. The agreement is then transformed in the form of a written instrument. However, this written instrument does not embody the entire agreement primarily due to the fact that it can cost a high price to put every term and condition in writing. Also, sometimes, the marginal cost of writing the contract exceeds the marginal benefit thereof. Thus, only the original contract is written, and W Posner represents that written part. In the end, the terms and conditions that the parties discussed but never agreed upon are represented by the term C'.

Although after a long period of negotiation a contract either partially or completely is formed but level of uncertainty concerning the terms and conditions of the contract prevails among the parties. It becomes the non-return part of their agreement. Professor Posner represented this part by W'. This part plays a critically important role in the contract. It induces an opportunistic behavior among the contracting parties. Either of the parties can supplement W with terms and conditions as they have agreed upon. For this reason, the parties offer terms during the negotiation period for keeping them in the contract so that during the time of a dispute among the parties, the court or tribunal can use these terms and conditions to resolve it.

Alternatively, the contracting parties also introduce complementary terms as a part of the contract. These terms are often used for the purpose of influencing the other parties to sign. During this process, it is assumed that these terms are not enforceable by law despite being included in the written instrument at the time of the contract. Moreover, the contracting parties sometimes purposefully leave some of the terms and conditions of the written document empty. Either party tries an attempt to be the beneficiary of these terms and conditions. However, it is a game of opportunity. Such opportunism does not become a problem unless the parties come at dispute. It is the time when parties argue that the contract consisted of only W along with the little bit of W' or even some of C'. In such a situation, the court or tribunal has to decide that which part is the real substance of the contract. Thus, the court concerns to the doctrine of contract law. It is often reported as a board game of clashing exceptions, sub rules and tests that negatively affect the litigation process as well as the counseling of the clients. At this point in time, the court has to take the Parol evidence rule into consideration.

The Parol evidence rule, at its core, deals with the noteworthiness and consequences in the legal framework of the process of making of an agreement to a written instrument. It seeks to ensure judicial certainty and stability to written documents. Thereof, the Parol evidence rule attains predictability in the judicial review. As illustrated by Professor Posner in his figure, the substance of a contract may appear to be a simple matter but it comes with a complicated set of facts. For this reason, the legal review does not remain a straightforward method.

Therefore, the Parol evidence rule maintains its critical position in providing the legal backdrop to the courts against which the issues are resolved. Moreover, the Parol evidence rule also successfully provides a legal backdrop to the parties against which to take appropriate measures for safeguarding the integrity of the written agreement. In this process, the contracting parties also successfully minimize the risk of an uncertain, costly and lengthy litigation process. These appropriate measures include certain contractual terms that have been developed over the time on the grounds of the Parol evidence rule. They are commonly known as integration on merger clauses. They work as the drafting tool for protecting the integrity of the written agreements.

In connection with the figure provided by Professor Posner, the integration clauses make W impervious to a later complementation, variation or contradiction, in the event of a dispute, on the grounds of evidence concerning C' or W'. Today, the integration on merger clauses commonly used in contracts particularly the ones including international contracting parties.

Many nations seek to establish uniform bodies of law for governing the cross border transactions. These nations support the notion that such uniform bodies of law, in the arena of international transactions, smoothly sail to efficiency both in terms of cost and time. Although this goal of uniform bodies of law appears to be a part of the twenty-first century, it dates back to the Middle Ages. The businessmen that travelled between the borders short to create uniform set of laws the sole purpose of facilitating their businesses.

The CISG is the most significant and the most recent attempt by the United Nations for codifying the private international law in the area of sale of goods internationally. It is the culmination of an arduous international effort for establishing international contract laws concerning the sales of good at international level. The founders of the Convention intended to achieve the uniformity goal by removing artificial impediments in commerce caused by differences in the national legal systems. In this regard, the founders encouraged the dissemination and use of jurisprudence (international case law) and doctrine (scholarly critique) for interpreting the language of the Convention. Finally, they recognised obligation of good faith as the bedrock of international business norms as well.

The Eleventh and Fifth Circuits took a divergent approach concerning that if the Parol evidence rule comports with Article 8 of the CISG. The Eleventh Circuit, in MCC-Marble versus Ceramica, held that the Parol evidence rule does not go in conformity with the CISG. In contrast to this decision, the Fifth Circuit, in an old case titled Beijing Metals versus American Business Center, decided that the Parol evidence rule applies to the CISG. In this regard, careful analysis of the language interpretation provision is required along with the works of the most contemporary commentators supporting MCC marble decision, the CISG's goal for promoting facility in international contract law and the legislative history.

Purpose of Study

The aim of this paper is to investigate the changes in substantive laws brought by globalisation of trade and hence birth of international uniform laws. The municipal systems recognise the substantive law. In this regard, the Parol rule of evidence remains under pressure. It is further argued that the subjective intention of parties in the admissibility of evidence of pre-contractual nature is outdated. For this reason, change is inevitable. On the other hand of the discussion, the Convention of Contracts for International Sale of Goods (CISG), the binding contract among nations, has recognised the fact that the business people ignore the rules on which contracts are often interpreted.

Moreover, this paper highlights exchange and bargains as grounds for international contracts. In this regard, it argues that the classical theory is outdated and wrong; the theory suggests that two strangers transact in a perfect spot market for a homogenous product. Thus, there is conflict between the article 8 of the CISG and the Parol rule of evidence. For this reason, different results have been yielded as an outcome of litigation as witnessed in the recent U.S. cases such as MCC-Marble versus Ceramica. However, the common law has tools to bring similar results as under the CISG; such as rectification. Thus, it is high time for the common law to recognise and embrace International trends.

Objectives of Study

This research dissertation has the following objectives:

To investigate the changes in substantive laws brought by globalisation of trade and hence birth of international uniform laws.

To highlight exchange and bargains as grounds for contracts.

To argue that the classical theory is outdated and wrong which suggests that two strangers transact in a perfect spot market for a homogenous product.

To provide a comprehensive literature review in this regard.

Sources of Data

This research study relates to interpretation of International commercial contracts. Fact and information concerning the Parol evidence rule and the CISG have been collected for this dissertation using secondary sources such as the journal articles and research papers. Moreover, websites such as JSTOR, ResearchGate, BASE, and other have been used in this regard.

Organization of Study

The study has been organized as follows: Chapter 2 discusses the research and literature review on the topic under discussion. Chapter 3 briefly discusses the methodology of the dissertation. Chapter 4 presents the findings of the research in detail. This chapter has further been subdivided into three parts, i.e., the intention of contracting parties, the formation of contract, and the jurisprudence of CISG. The last chapter concludes the dissertation.

Chapter 2: Research and Literature Review

In American contract jurisprudence, Parol evidence rule has been the subject of substantial amount of litigation for centuries. However, the Parol evidence has legitimately been called the source of confusion in contract law. Primarily, it is not a rule of evidence as its name might suggest too many, i.e., it does not deal with the rule or method through which a fact must be proven. In contrary, it is a rule of substantive law suggesting that certain fact is material for the formation of the substance of a contract. In a similar fashion, the rule is not limited to the Parol evidence only where Parol indicates connotes words of mouth, i.e., the oral communication only.

However, while continuing with the discussion in the same direction, the word Parol has been derived from the Italian and French terms for ‘words’. For this reason, this term has been in use as it describes the scope of the rule in a better manner, as it applies to both written and oral contracts, be it in the form of agreements, understandings, representations, or negotiations. Since the rule applies to all evidence, the term ‘extrinsic evidence’ is used in an attempt to avoid any potential confusions. This term includes all evidence irrespective of the form arising outside the scope of a written contract.

As a matter of fact, the term must be considered as a cluster of legal doctrines and concept instead of being an actual rule of law primarily due to the fact that it is a rule used for distinguishing between the facts leading to the substance of a contract and the ones not leading in the same direction, i.e., the facts that are immaterial to the contract, relative to a written contract. In this regard, it is the Parol evidence rule must be regarded as a legal framework or a body of doctrine, under which a law identifies a contract, i.e., a legally operative agreement in the midst of a length process of negotiations riddled with representations, oral understandings, tentative agreements, and different proposals that concluded with a written agreement. Thus, all of these definitions of the title of the rule lead to the sources of confusion towards the actual scope and nature of the same.

In the early 1930s, the UNIDRIOT appointed a group of scholars primarily from the European region of the planet for the sole purpose of drafting a set of laws for addressing the sale of international goods. However, until 1964, the work could not be completed due to the influence of the World War II. In 1964, two conventions, i.e., the Uniform Law on Formation on Contracts of the International Sale of Goods and the Uniform Law for International Sale of Goods were finalized. Therefore, the origin of CISG must be traced back to early 1930s instead of 1964. Although the European nations did not ratify any of the two conventions and thus, they never received the support worldwide primarily due to the fact that the European scholars drafted them. However, both of these conventions have played a significantly important role in the history of the development of CISG due to the fact that provided natural starting point for another attempt at forming a uniform body of international law.

In 1966, the United Nations created UNCITRAL in an attempt to address the concerns of other nations. The Commission appointed a group of legal scholars from fourteen different states. All of them had different legal traditions. They were provided with the task of creating a uniform legal text with the purpose of harmonizing the different demands creating a convention enjoying support worldwide. In 1980, the work was finalized and somewhat completed when the CISG was presented by the Convention to the United Nations for signature.. Ever since, the CISG has been regarded as one of the most successful attempts in the history of international law for formation of uniform body of international commercial law. As a testimony to its success, the Convention has successfully ratified signatures from the countries worldwide.

It gives rise to the question in discussion that what exactly is CISG. It is a substantive law, i.e., it preempts the otherwise applicable domestics laws. It is worth mentioning here that despite being a substantive law, the same is not a procedural law. Therefore, it does not affect the evidentiary or procedural rules of the applicable forum. The application of CISG is widespread. It is automatically applied when the private international law rules lead to application of law of the contracting states or when the business of the contracting parties is spread between two contracting states. For this reason, the applicability of the CISG does not need agreement upon it between the parties. It is the governing law of contract and thus, it is applied if the prerequisite of its application are at hand.

However, none of the legal documents or texts come without issues. An important issue that was being addressed during the making of CISG concerned its role in the gap-filling of the Convention, i.e., the substantive issues or topics that were left by the Convention and were thus not addressed. In an attempt to resolve this issue, two of the either approaches are adopted. Firstly, general principles underlying the Convention are applied, and secondly, the issue is resolved by resorting to domestic laws. Ideally, the CISG has been successful in adopting a compromise between the two approaches. In this solution, the CISG suggests that the underlying rules of the Convention must prevail the domestic laws, i.e., the problem must be resolved firstly through application of the general principles of the Convention and if these rules do not comprehensively address the issue on the table, the domestic rules applicable by virtue of private international law must be applied.

The issue of Parol evidence rule was brought on the table as a part of the discussion sessions during the drafting of the CISG in the 1980s. The rule was rather discussed as an issue of whether an evidentiary limit should be applied to a party attempting to introduce evidence to the effect of supplementing or contradicting a written agreement. In this regard, one of the Canadian representatives proposed amendment to the current Article 11 of CISG. The amendment discussed applying a limit on the amount of admissible evidence in cases where the parties in contract, after mutual consent, had chosen to trim down their agreements to a written instrument. This amendment is of considerable importance in the history of the relationship between Parol evidence rule and CISG due to the fact that it sought to include a version of the Parol evidence rule somewhat similar to the Williston approach.

However, the suggestion of amendment was not welcomed and it met with great criticism primarily due to the fact that some of the delegates from the civil law nations found it clashing with the evidentiary principles of the civil law. According to this part of law, a court can review all kind of evidence. It was opposed why the Australian delegation on the ground that it was aimed at limiting the principle of evidence. In a similar fashion, the Australian delegation opposed the suggestion because according to them it limited the principle of free appreciation of evidence by the judge. It is worth mentioning here that this is known as the fundamental principle of Australian law. Continuing further, the Japanese representatives opposed it because they found the amendment to be too difficult to apply and rigid. The Japanese representatives brought forward this criticism because they believed that even in the common law countries, it lacked uniform body of law. Since the proposed amendment of the Canadian representative did not receive much support, it was rejected by the committee upon vote. Based on this discussion, it is evidently clear that the drafters of the CISG rejected the exclusionary aspect of the Willistonian Parol evidence rule. This discussion has also made it clear that that the different aspects and versions of the Parol evidence rule not considered while rejecting the suggestion of Canadian representatives.

The application of the Parol evidence rule is critical. It is applied to the terms and conditions of a contract in two different ways. Firstly, it is applied interpreting the meaning of contractual terms, and secondly, it is applied for proving that if the parties intended to form an integrated agreement. Determining the extent to which the Parol evidence rule helps in providing integration is also a critical process. However, it can be determined using a two-step approach. The first step is to determine that if an agreement is integrated at the first place. It depends on the parties entering into the contract and thus, assenting to a final expression of the terms and conditions to which they have agreed upon. It is evidently clear that this part of assessment is easier said than done. It is a difficult assessment to make primarily due to the fact that the law does not require a particular form open agreement neither does it disregard model agreement. For this reason, all oral contracts along with the written contracts in any form are integrated for Parol evidence purposes. Once it has been cleared written agreement is integrated and the parties had intended to do so, the next question that arises on the surface is that if the parties have had intended to integrate the contract either completely or partially. This critical question can be answered in two different manners. However, the choice of the answer depends upon that if the answer of the first question has been found using the traditional (narrower) or liberal (modern) approach to the Parol evidence rule.

The classical or traditional approach to the Parol evidence rule is defined as the classical Williston approach. Under this approach, an objective examination of the language used in the contract is carried out for the purpose of determining that if the agreement is a partial or complete integration. The terms extrinsic to the agreement can be permitted the part of the evidence only if there is some uncertainty to the meaning of the terms. For this reason, this approach goes far to the point where it allows for the possibility for the parties contract without considering the intent of either of them as long as a plain meaning analysis to the contract can be given by the courts. Therefore, if the court finds the contract to be written in a difficult language it has the discretion of not admitting evidence of what the parties may have thought the meaning to be.

On the other part of the discussion, i.e., under the modern Cobin approach to the Parol evidence rule, courts primarily focus on the intentions of the contracting parties instead of the integration practices. This approaches followed by most of the courts in the United States. However it is not an easy process to ascertain the intention of the parties. For the purpose of ascertaining the intention of the parties, the courts must take into account all of the relevant circumstances. It includes taking account of the evidence of prior negotiations. Although it is a lengthy process of determination intention of the parties but the rationale behind this approach is that the completeness and comprehensiveness writing of a contract cannot be determined except in the light of the circumstances in which the contract was formed between the parties. This modern approach to the Parol evidence rule is of considerable importance due to the fact that it recognises to resolve the issue of completed partial integration of a contract is an arduous task. It works on the theory that the writing does not prove its accuracy and completeness. For this reason, under this modern approach, the courts enjoy wide latitude in determining that if the parties had intended the contract to be a partial or complete integration.

Article 8 of the CISG is another important article that is of considerable importance in how the Parol evidence rule has been approached by courts and commentator. This article of the legal text deals with the interpretation of statements other conduct of the contracting parties. Article 8 has three parts as under;

Firstly, it explains that for the purpose of this convention, the statements and other conduct of the contracting parties must be interpreted as per the intentions of the parties themselves. However such interpretation must be carried out only if the other contracting party is well aware of the intention or otherwise is not unaware of it.

Secondly, if the first rule of interpretation of statements and other conducts of the parties cannot be applied then they must be interpreted according to the understanding that a reasonable person must have shown if in the same circumstances.

Lastly, the relevant circumstances of every case must be given due consideration in determination of the intent of the party or the understanding of a reasonable person. It includes negotiations. Furthermore, it includes the later conduct of the parties as well as any practices that the parties have developed among them.

This article is of considerable importance primarily due to the fact that its first part is a clear suggestion that the primary interpretative source a contract must be based upon the subjective intent of the contracting parties. The first part of the article also elaborates the other party must be aware of the intent or at least must not be unaware of the same. The Article further dictates but if this approach is insufficient then the understanding of a reasonable person must be applied. Based on these suggestions, the Article portraits adoption of the modern contract theory. The modern theory of contact formation focuses on intent of the parties insofar as the intent is clearly communicated to the other party. Under American contract jurisprudence, this approach is well established.

Going ahead, the third part of article 8 directs courts to give considerable importance to all relevant circumstances while interpreting a contract. This part of the article is of great importance due to the fact that it rejects any limits ever proposed or applied on the type of evidence that can be included during formation of a contract. Based on this discussion, it can be concluded that article 11 along with article 8(3) successfully establish a general principle explaining that a written contract does not enjoy special status despite the fact that it has inherent practical evidentiary advantages. Moving in the same direction, the CISG does not effectuate a presumption, either partial or complete, that writing a contract constitutes an integration. However, relative to oral contracts, written contract may be held in higher regard. It is in pursuance of the applicable rules of evidence. According to the general International Private Law principal, the CISG does not govern formation of a contract but the law of the forum. However, the CISG remains substantive contract law that does not make any such stipulation.

Some of the legal cases play the critical role in this regard as well. In 1988, a case MCC-Marble Ceramic Centre Incorporation versus Ceramica Nuova D'Agostino, S.P.A. was decided by the court of appeals for the Eleventh Circuit. The court decided the leading case latterly in the context of the issue that if a Parol evidence rule exists under the cover of CISG. For this reason, it is of considerable importance hair the examination of the facts of this case have been warranted to the Eleventh Circuit. The president of the Florida ceramic company, in 1990, attended or trade show in Italy. It is where he met the director of The Italian manufacturer. At the very point, the two representatives entered into an agreement according to which the Italian manufacturer should deliver products to the Florida ceramic company. The two parties orderly discuss the details of the terms and conditions of the contract including the price quantity and other key terms. The president of the Florida ceramic company afterwards signed a pre-written order proposal form Italian manufacturer. The phone was in Italian Language. According to the proposal form, the buyer of the products was required to provide the company weather written notice of the defects if any in the products within ten days of the delivery, and that delay or default in the payment would permit the seller with the opportunity to fully or partially cancel the contract between the parties. In addition to these prerequisites, the proposal form also stated that the buyer was informed or aware of the provisions provided on the rivers of the form.

The Italian manufacturer made several deliveries in the later months. A pretty execution of the written contract, according to the Florida ceramic company, the parties also entered into a verbal requirements contract. The Florida ceramic company afterwards also allegedly made several complaints to the Italian manufacturer about the quality of the ceramic tiles. However, it did not provide any written complaint in this regard. Despite lack of written complaint, the Florida Company withheld payments. Witnessing the situation, the Italian manufacturer refused to shift further orders. Because of this refusal, the Florida ceramic company filed a Suit against the Italian manufacturer in the Federal District Court of southern district of Florida. In this case, the Florida Company withheld responsible for the Legend defects in the received product as well as the failure of the failure of the same in continuing deliveries. In support of the allegation, the Florida Company put forward the oral requirement contract made between the parties after execution of the written contract. The Italian manufacturer counterclaimed that the Florida Company failed to provide any written complaint do it in pursuance to the terms and conditions of the written contract. It is worth mentioning here that the contract between the parties stated that the Florida Company was aware of the provision provided on the reverse of the form. According to these provisions, Florida Company had to submit a written notice of the defects in the received goods within 10 days of the delivery. However, the company never provided written statement concerning the non-conformity of the goods. Italian manufacturer further argued that it was in its capacity to refuse for the deliveries because Florida Company withheld the payments without any written notice. Moreover, the Florida Company did not make payments of the previous shipments.

The Florida Company in response submitted affidavits from its own president as well as the director of The Italian manufacturer. According to these affidavits, the parties had come to an agreement that with the help of a translator, the back of the form had been translated and the parties had decided that they will not be bound by the provisions provided on the reverse of the order form. However, the affidavit did not provide explicit true of the intention of the parties to do so that is objective manifestation of the affidavit was lacking. Thus, the contracting parties shared mutual intention of not including the provisions provided on the reverse of the order form is part of the written contract neither party manifested that intent. The district court, present circumstances of the case, held that the provisions provided on the reverse of the order form applied on the contract despite the subjective intentions of the parties. According to the court order, the written contract between the contracting parties was a complete integration the terms and conditions of the agreement. It precluded any resort to extrinsic evidence. Based on this discussion, the district court granted summary judgment in favor of the Italian manufacturer. However, the court did not make direct reference to the Parol evidence rule by its name.

In contrast to this decision, the Eleventh Circuit held that affidavits provided by the Florida company established the fact that although neither of the parties head objectively manifested the intention of not including the provisions provided at the rivers of the order form, director of the Italian manufacturing company was aware of the fact the parties were not bound by the provision the Florida company had to provide written notice any defects in the products within ten days of the delivery. The decision of the Eleventh Circuit came as a major breakthrough due to the fact that put the facts of the case within article 8(1) of the CISG. According to this article, the statements and conduct of the parties must be interpreted intention of the same. Therefore, the Florida Company successfully raised material fact concerning the subjective intention of the parties. For this reason, the parties were not bound by the provisions provided at the rivers of the proposal order form. It precludes a summary judgment. Based on this discussion, the Eleventh Circuit amended the case for further proceedings as it reversed the grant summary.

The decision of the Eleventh Circuit is of great importance here due to the fact that if it had stopped here, the kids would not have become the highly regarded and leading case in the context of the Parol evidence rule and the CISG as it is considered today. The court has successfully played its role in addressing the first question appearing on the surface that is the Parol evidence rule plays any role in cases concerning the CISG. The court began its decision by concluding that as opposed to the rule of evidence the Parol evidence rule is a substantive rule of law. In this context, the CISG preempts its application. Therefore, the Parol evidence rule cannot be applied is a procedural matter. It can only be applied as a part of the CISG.

If the Parol evidence rule is absent in its applicability the applicable rules of procedure rules of evidence cannot allow for a possible in-road. The court also concluded that the CISG and the Parol evidence rule have no express statements in common. However, the CISG, pursuant to Article 11, remains comfortable with allowing the contracting parties to rely on written as well as oral contracts alike. After concluding this discussion on Article 11, the court moves towards article 8(3) of the CISG. The court provided this article as the major reason for rejecting Parol evidence rule as a part of the CISG. According to this article, the courts are required to give due consideration to all of the relevant circumstances of the case under discussion. It includes negotiations. Such consideration must be given with the purpose of determining the intention of the contracting parties. According to the decision of the court, this article provides clear instruction towards admission and consideration of expressing evidence concerning the negotiations to the extent read a successful reveal the subjective intention of the parties. This rating of the article clear rejection of the payroll evidence rule has been supported by most of the academic works. For this reason, the court made reference to several commentaries supporting the fact that the language of the article provides a clear indication that an inclusive approach towards all kind of relevant evidence has been adopted by the CISG. Therefore, it preempts any domestic substantive rules limiting inclusion of evidence when deciding the case including international contracting parties.

The case of Beijing Metals and Mineral Import/Export Corporation versus American Business Center Incorporated was decided by the Fifth Circuit in 1988. The Beijing Company entered into a sales agreement with the American business company. The contracting parties agreed upon to purchasing the fitness equipment with the purpose of developing the weightlifting market in the United States and Canada. The American company exit to furnishing the Beijing Company with design prints and samples for the research and development of weightlifting market in the desired countries. As per the American company, the Beijing company introducing and shipping defective goods. Therefore, it notified the company of the defective goods. Upon the notification, both of the companies entered into an oral agreement. According to the oral agreement, the Beijing Company promised to send replacement goods in conformance to the contractual specifications. Simultaneously, both of the parties also orally agreed to change the payment method tour period of 90 days maximum. Under this method the American company was to pay for the equipment to the Beijing Company.

According to the president of the American company, the Beijing Company did not intend to reduce the two oral agreements into written instrument. The president further explained that the Beijing Company not willing to do so due to some political reasons. In order to accommodate the Beijing Company, the American company decided not to reduce the two oral agreements into writing. However, the American company did not pay all of the invoices. As a matter of fact, it only paid photo invoices and declined twenty-seven shipments; it totaled to more than 1.2 million American Dollars. Seeing this situation, the Beijing Company notified the American company that if the payments would not made immediately the Beijing Company would no longer ship equipment. As a result, the American company negotiated up payment plan with the Beijing Company.

Moving further, the American company alleged the Beijing Company did not ship the replacement goods. Based on this allegation, the American company stopped payment to the Beijing Company on a check it issued earlier. As a result of these circumstances the Beijing Company find the suit in the district court for the southern district of Texas with the purpose of discovering the contract amount from the American company. In its defense, American company maintained that the payment plan was a part of a larger and more comprehensive agreement of sale of goods between the two parties. The American company further maintained that the two oral agreements were part of agreement as well. The trial court, notwithstanding the difference of the American company, granted summary judgment in favor of the Beijing Company. As a result of this decision, the Beijing Company was granted a money judgment totaling 1.7 million American Dollars. In its decision, the trial court explained the Parol evidence rule has prevented the two oral agreements to become a part of the written contract. The court further explained that that the agreement was written unambiguously. For this reason, no evidence of contingent collateral agreements has been added to the written contract itself.

The American company went into appeal. The Court of Appeal for the Fifth Circuit Also affirmed the decision of the trial court concerning the Parol evidence rule. The court, without getting into details and explanations, determined at the Parol evidence rule is applied how to search a case regardless to the fact that if the Texas State Law or CISG is applied on the dispute. The court then ran two comprehensive analysis supporting its holding. Firstly, the court found that the payment plan between the two parties what's the complete agreement in itself. It was written agreement that was written without any ambiguity and in a clear language. Moreover, the agreement contained an itemized payments schedule. The parties had unanimously agreed to this contract. Therefore, the existence of contingent expressing agreements regarding the future payments future shipment of the replacement goods were not suggested by the agreement. Secondly, the court found that the two oral agreements one not part of the major written contract due to the fact that they were not Collateral agreements. Since they were not collateral agreements, they were not allowed to be admitted into evidence primarily because they were consistent with the written agreement itself. Based on these arguments, the court allowed the Parol evidence rule to govern the outcome of the case.

Chapter 3: Methodology

The literature review concludes that the Parol evidence rule must be regarded as a legal framework or a body of doctrine under which a law identifies a contract, i.e., a legally operative agreement in the midst of a length process of negotiations riddled with representations, oral understandings, tentative agreements, and different proposals that concluded with a written agreement. Thus, all of these definitions of the title of the rule lead to the sources of confusion towards the actual scope and nature of the same.

It also concludes that CISG is a substantive law, i.e., it preempts the otherwise applicable domestic’s laws. It is worth mentioning here that despite being a substantive law, the same is not a procedural law. Therefore, it does not affect the evidentiary or procedural rules of the applicable forum. The application of CISG remains widespread and is automatically applied when the private international law rules lead to application of law of the contracting states or when the business of the contracting parties is spread between two contracting states. For this reason, the applicability of the CISG does not need agreement upon it between the parties. It is the governing law of contract and thus, it is applied if the prerequisite of its application are at hand.

This research study relates to interpretation of International commercial contracts. Fact and information concerning the Parol evidence rule and the CISG have been collected for this dissertation using secondary sources such as the journal articles and research papers. Moreover, websites such as JSTOR, Research Gate, BASE, and other have been used in this regard.

It also concerns with the relevant articles of CISG. Article 8 of the CISG is an important article that is of considerable importance in how the Parol evidence rule has been approached by courts and commentator. This article of the legal text deals with the interpretation of statements other conduct of the contracting parties. Article 8 has three parts as under; firstly, it explains that for the purpose of this convention, the statements and other conduct of the contracting parties must be interpreted as per the intentions of the parties themselves. However such interpretation must be carried out only if the other contracting party is well aware of the intention or otherwise is not unaware of it. Secondly, if the first rule of interpretation of statements and other conducts of the parties cannot be applied then they must be interpreted according to the understanding that a reasonable person must have shown if in the same circumstances. Lastly, the relevant circumstances of every case must be given due consideration in determination of the intent of the party or the understanding of a reasonable person. It includes negotiations. Furthermore, it includes the later conduct of the parties as well as any practices that the parties have developed among them.

It also concerns several legal cases. For instance, the Eleventh Circuit, in MCC-Marble versus Ceramica, held that the Parol evidence rule does not go in conformity with the CISG. In contrast to this decision, the Fifth Circuit, in an old case titled Beijing Metals versus American Business Center, decided that the Parol evidence rule applies to the CISG. Similarly, in the case titled Roger versus La Societe, the court looked at the prolonged dealing between the contracting parties and came to the conclusion that the seller knew that the goods were destined to French market. Therefore, according to the court, the seller had to comply with the marketing regulations of France. In a similar fashion, in the case titled Obergericbt Basel-Landscbaft, the question in front of the court was that if silence of the German supplier on receipt of the letter could be determined as an expression of intention. The court determines the intentions of the parties in this case and determined that the silence in this case did not constituent acceptance of the latter. In Smith vs. Hughes, the court just did not only referred to the objective intent but also included the subjective element and interpretation of the contract.

Chapter 4: Analysis, Discussion and Summary of Results

As an integral part of the common law contract jurisprudence, the Parol evidence rule has a straightforward substantive character forbidding the parties who had reduced the negotiations to a written instrument from varying, adding to, or subtracting from that text. Over the time, the rule has developed into one of the most misunderstood, complex, and controversial contract doctrine of common law despite its initial simplicity. This chapter elaborates the findings of the research and the literature review in this regard. For the purpose of simplicity, this chapter has been divided into three parts, i.e., the intention of the parties, interpretation of contracts, and jurisprudence of CISG.

Intention of Parties

This dissertation argues that a complete rethinking of the Parol evidence rule is inevitable primarily due to two important reasons. Firstly, it is not possible for the domestic floors definitely ignore the increasing influence and importance of international uniform laws. Secondly, within the common law, the subjective intent is applied in certain circumstances anyway. For this reason, creating a dual system within its own laws is not in the best interest of the domestic laws when different laws can apply depending on the place of business. It presents a problem that can be reduced if domestic law adjusts to its own laws where possible while taking notes of international law. Moreover, the omission of subjective intent of the parties entering into a contract has largely been criticized by an increasing number of Academics. For this reason the Parol evidence rule is incompatible with the views of the business community and international developments.

With regard to intention of parties, the first observation on the Parol evidence rule is that it lacks uniform application among countries observing common law. Between the United States of America and Australia, the rule varies. Even it is not uniform within the United States where it has both varied and statutory Commando manifestations. Also, in the United States the Parol evidence rule is expressed in Article 2 of the Uniform Commercial Code. The prime factors of Parol evidence rule is to determine the substance of a written contract by determining which evidence is applicable in the circumstances. In the case of The United States of America, the modern approach has been adopted due to the fact that it instructs the courts to view all of the relevant evidence surrounding the contract for deciding that if the parties actually intended the writing to be exclusive and complete. The crucial point in this discussion arrives when the court has to decide that if the contract had been written with the purpose of complete or partial integration or statement of the contract. This problem in general is resolved by the common law but taking a stance promoting predictability uncertainty in contract performance.

Despite the fact that such a view is of considerable importance, the fact cannot be subsided that it ignores the fundamental reason behind the formation of a contract primarily due to the fact that it ignore is the motive and only looks the outcome of an action. What is the reason behind this inability lies in the fact that a contract cannot be really taken as an instrument that an impassive bystander can interpret without taking account of the understanding of the statements what conduct of the parties contracting parties.

The difference between the approach taken by the CISG and the common law approach can the best illustrated through a French case titled Roger versus La Societe. In this case, the court looked at the prolonged dealing between the contracting parties and came to the conclusion that the seller knew that the goods were destined to French market. Therefore, according to the court, the seller had to comply with the marketing regulations of France. Under the Parol evidence rule, the evidence of the conduct of the parties would have been inadmissible in terms of the common law primarily due to the fact that the written contract did not include the clause concerning application of French marketing regulations on the goods. However, the intention of parties is treated factual piece of information a notice the question of evidentiary rule under the CISG. Such factual pieces of information are a prerequisite for construction of the contract as the parties intended it to be at the first place.

The subjective intent of the contracting parties has been best summarised by McHugh JA who explained that it is right of the courts to review the circumstances in constructing a document. He also explains that this right of the courts is no longer open to dispute. However, there is no doubt in the fact that the subjective intention of the parties remains inadmissible for supporting particular interpretations of a contract. For this reason, some of the people might assume that the subjective intent of parties, under the common law, has no place at all summarily due to the fact that all it does is an introduction of an area of uncertainty. As a matter of fact, it is not the reality. Lord Steyn elaborated that a rule cannot be unqualified and absolute because it would result in defeat of the reasonable expectations of commercial businessmen. However, Lord Hoffman has not embraced introduction of subjective intent of the contracting parties influential principle where he argued that the declaration of subjective intent and the previous negotiations of the parties are excluded from the admissible background by the law. This approach has its place in the contract law but if it ignores the possibility that the contracting parties what are the agreed upon a terminology in their previous negotiations, which is foreign to them but they know its meaning. This point of view has been confirmed by Clark JA. Is the Parol evidence rule is applied, it will arguably defeat the reasonable Expectations of commercial men.

Besides the potential of construction of a contract artificially, the real problem in this scenario is arrived when in certain circumstances the principle of subjective intent is applied for interpreting the written contract. According to Lord Hoffman, this principle is only admissible in an action for rectification. There is a conflict of policy of predictability and certainty due to the fact that the subjective intent has different meanings concerning the interpretation or formation of a contract. Primarily, the conflict arrives due to the fact that it is not possible that the theory of subjective intent is acceptable in one part of the law not acceptable in another. It is worth mentioning here that if a micro look is taken on the Parol evidence rule, the argument that predictability uncertainty is achieved can be advanced. However, this argument is not defensible in the big picture approach.

Another case titled Smith vs. Hugbes is often noted, in the formation of contracts, as advocating that apparent consensus or objective is sufficient. The concept of apparent consensus explains that that is a reasonable man believes that he is indenting himself to the terms of a contract, and the other party based on this belief enters into the contract then the person asserting to the terms of the contract is equally bound as he has agreed to the terms proposed by the other party. In formation of contract, the meeting of mind or a consensus ad idem is an essential element. However, in Smith vs. Hugbes, the judge did not only referred to the objective intent but also included the subjective element and interpretation of the contract. Primarily, he included it based on the theory that the other party entered into the contract believing upon the previous party. It indicates that the presence of a subjective understanding is essential for formation of a contract.

The above argument is of critical importance due to the fact that the actual and presumed assumptions of the contracting parties must be differentiated from each other. It is of great importance that the subjective what actual intention of the parties is sought. No contract will be concluded despite the fact that an informed bystander concluded that a contract is formed looking at the words if the parties were aware that they were play acting. It demonstrates the problem of applying the objective theory. It brings the discussion to the question that if the presumed or objective intent must be considered if no subjective intent can be established. According to Hope JA, it would be fraudulent to deny the intent is the mutual consent of the contracting parties was to conclude a contract. In conclusion, enforcing the actual intention of the parties making a contract as manifested by their conduct has a commercial and social importance.

Interpretation of Contracts

The rules change as soon as a binding contract is admitted. As to the interpretation of the contract, the evidence that the parties had relied upon for formation of the contract becomes inadmissible. The plain or literal meaning approach is rejected bad even liberal versions stressing 'the importance of commercial men' and 'common sense'. However, this approach does not reject the Parol evidence rule. Lord Hoffmann, as pointed out earlier, set out five rules applying the Parol evidence rule. Primarily, he has reinforced the evidence concerning subjective intentions is inadmissible. However, in his rule number three, Lord Hoffmann admits that the evidence concerning the subjective intent is admissible in an action for rectification.

The implication and rectification of a term share one thing in common. The problem is arrived primarily due to omission of a fact that should otherwise have been included. It is worth mentioning here that the application of Parol evidence rule in this context must be extended to the implication of terms. Mason J elaborated the difference by stating that the remarks are directed to the application of the Parol evidence rule a note to the implication of a term. He also explained that the difference between implication and rectification of a term lies in the fact that the former gives effect to the presumed intentions of the contracting parties where the latter gives effect to the actual intentions the contracting parties is. This distinction is based on the examination of the intention of the parties. For this reason, it is of considerable importance. Rectification of a term can be used to giving effect to the contract if subjective intent can be established. However, if such intent is absent, the only way to give effect to a contract lies in implication of a term using objective criteria. In essence, the whole issue does not revolve around what evidence is available but hinges on the approach by Counsel. For this reason, if Counsel relies an implication of a term despite having admissible rectification evidence of subject intent, the same exact evidence will be barred from taken into account by the Parol evidence rule. Based on this discussion, it comes out without doubt that the objective or presumed intention leads to implication of a term. Anytime belonging to a contract can be implied into a contract by a court in its capacity as an informed bystander that clearly belongs to date contract. An emerging example in this regard is that of good faith.

In conclusion, it can be suggested that rectification must be sought as soon as subjective intent can be established. If such an establishment is not possible then the focus must be maintained on objective intent but if it can be elicited and thus, a term can be implied to a contract. Mason J confirmed this notion by stating that the prior oral agreement is admissible in an action for rectification being inadmissible in aid of construction. Logically speaking, there is no point in admitting a piece of evidence during formation of a contract rectification of a term is in dispute but not admitting the same evidence when interpretation of the contract is at issue. The policy is not consistent; there is a difference between being pregnant when being a little bit pregnant. This inconsistency argument becomes of great importance when it becomes clear that the extrinsic evidence is not even going to be admissible on the grounds of the implication of a term.

This argument is an exception to the Parol evidence rule. However, it remains confusing. Kerr J laid it down. He elaborated but how meanings must be given to the words capable of providing more than one meaning during interpretation of a contract. According to him, the courts must examine the extinction evidence in order to determine that if the contracting parties have used the words in question in one sense only; by doing so, it would be possible for the courts to give effect to the dictionary meaning of the word as a result of the common intention of the parties. Although it is a comprehensive point of view on the topic under discussion, it does not come without problems. The primary problem with this view is that the court has to decide the word under consideration is capable of possessing only one meaning. In this context, the discussion reverts to the informed bystander again you have to decide about the intention of the parties that if they wanted to create the contract or not. A stronger argument can be made in this regard, i.e., the parties must be asked about the subjective intent instead of making any second guesses about the objective meaning. In both of the cases, the consistency and predictability argument cannot be advanced by the exceptions. It is worth mentioning here that the document is frequently noted is the grounds of contract theory. In conclusion, the leading cases have found it important enough to admit the need exceptions in Parol evidence rule.

Jurisprudence of the CISG

In contrary to the view presented by the common law, the CISG presents a simple approach to ascertain intention of the parties. The same approach has also been adopted by the European principles, and UNIDROIT. This approach has been adopted as an important tool in understanding the importance of negotiations during formation of a contract. This approach has diverged despite the fact that both International and common law instruments give effect to a contract. According to the common law, contract expresses the negotiation of party primarily due to the fact that it views an agreement as the culmination of negotiations. If placed within the classical contract theory, this approach is logical. On the side of the discussion, the CISG realises it contract is an evolving instrument of exchange and bargain. For this reason, it elaborates the fact that strict adherence the written contract is not possible due to the ever changing cultural influences within international trade. For instance, a contract is an evolving instrument that changes according to the economic situations in Asian Trade.

According to the International text of the convention, interpretation of a contract revolves around intention of the parties; however, this intention must be teased out as per the Article 8 of CISG. The Court must ask its first question that if the parties understand the statement or conduct of the other parties in the contract. In the case titled Oberlandesgericht Miincben, the German buyer insisted on paying reduced amount of the goods as was decided in the agreement. However the court found that the other party has agreed to take fewer amounts if the buyer met certain conditions. Therefore, applying Article 8(1) of CISG, the full price became due error failed to do so. Moreover, silence can also amount to expressing intention. For this reason, article 8(1) does not only include statements made by the parties but also the conduct of the parties as constituting intent. In the case titled Obergericbt Basel-Landscbaft, the German seller did not ship winter collection because the Swiss buyer did not pay on time. The Swiss buyer later made up of the payment send sent a letter to the German supplier setting out delivery dates for the winter collection as well as the payment plan for the outstanding amount. The German supplier refrained from making the shipment. The Swiss buyer sued him for not sending the shipment. The question in front of the court was that if silence of the German supplier on receipt of the letter could be determined as an expression of intention. The court determines the intentions of the parties in this case and determined that the silence in this case did not constituent acceptance of the latter. The court also determined that the Swiss buyer must be aware of the fact that The Silence of the German seller did not amend their initial contract. Therefore, he could not be unaware of the true intention of the seller.

Chapter 5: Conclusion

The contractual landscape international level has significantly been changed due to the ascendancy of International commercial laws into modern laws and conventions. In an attempt to create uniform international laws, a compromise between the leading legal families had to be formed. The reason behind the application of the international law over the domestic rules in this case lies on the fact that the domestic law cannot protect itself from the influence of International laws for an indefinite period of time. In order to remain stepped up with best practices, principles and domestic law must regularly be reviewed.

The Parol evidence rule is one of the most criticised, most litigated, and most controversial legal doctrine of the common law. Yet it is an indispensable and integral contract law doctrine. The Parol evidence rule is of considerable importance in the American contract law due to the fact that deals with one of the most fundamental issues of the whole field of contract law, i.e., what is the substance of an agreement? Professor Eric Posner effectively illustrated the issue using a figure in an attempt to answer this very question. The figure has been demonstrated in detail in the previous parts of the very discussion. It is often reported as a board game of clashing exceptions, sub rules and tests that negatively affect the litigation process as well as the counseling of the clients. For this reason, the court has to turn to the Parol evidence rule. As illustrated by Professor Posner in his figure, the substance of a contract may appear to be a simple matter but it comes with the complicated set of facts. For this reason, the legal review does not remain a straightforward method. Therefore, the Parol evidence rule maintains its critical position in providing the legal backdrop to the courts against which the issues are resolved.

An important issue that was being addressed during the making of CISG concerned its role in the gap filling of the Convention, i.e., the substantive issues or topics that were left by the Convention and were thus not addressed. In an attempt to resolve this issue, two of the either approaches are adopted. Firstly, general principles underlying the Convention are applied, and secondly, the issue is resolved by resorting to domestic laws. Ideally, the CISG has been successful in adopting a compromise between the two approaches.

Once it has been cleared written agreement is integrated and the parties had intended to do so, the next question that arises on the surface is that if the parties have had intended to integrate the contract either completely or partially. This critical question can be answered in two different manners. However, the choice of the answer depends upon that if the answer of the first question has been found using the traditional (narrower) or liberal (modern) approach to the Parol evidence rule.

According to the common law, contract expresses the negotiation of party primarily due to the fact that it views an agreement as the culmination of negotiations. If placed within the classical contract theory, this approach is logical. On the side of the discussion, the CISG realises it contract is an evolving instrument of exchange and bargain. For this reason, it elaborates the fact that strict adherence the written contract is not possible due to the ever changing cultural influences within international trade. The difference between the approach taken by the CISG and the common law approach has been discussed in detail. It has been concluded from the discussion and in the light of previous legal cases that under the Parol evidence rule, the evidence of the conduct of the parties would have been inadmissible in terms of the common law primarily due to the fact that the written contract did not include the clause concerning application of French marketing regulations on the goods. However, the intention of parties is treated factual piece of information a notice the question of evidentiary rule under the CISG. Such factual pieces of information are a prerequisite for construction of the contract as the parties intended it to be at the first place.

Besides the potential of construction of a contract artificially, the real problem in this scenario is arrived when in certain circumstances the principle of subjective intent is applied for interpreting the written contract. The conflict arrives due to the fact that it is not possible that the theory of subjective intent is acceptable in one part of the law not acceptable in another. It is worth mentioning here that if a micro look is taken on the Parol evidence rule, the argument that predictability uncertainty achieved can be advanced. However, this argument is not defensible in the big picture approach.

The above argument is of critical importance due to the fact that the actual and presumed assumptions of the contracting parties must be differentiated from each other. It brings the discussion to the question that if the presumed or objective intent must be considered if no subjective intent can be established. It would be fraudulent to deny the intent is the mutual consent of the contracting parties was to conclude a contract. In conclusion, enforcing the actual intention of the parties making a contract as manifested by their conduct has a commercial and social importance. This distinction is based on the examination of the intention of the parties. For this reason, it is of considerable importance. Rectification of a term can be used to giving effect to the contract if subjective intent can be established. However, if such intent is absent, the only way to give effect to a contract lies in implication of a term using objective criteria. Moreover, silence can also amount to expressing intention. For this reason, article 8(1) does not only include statements made by the parties but also the conduct of the parties as constituting intent.

Overall, this dissertation investigated the changes in substantive laws brought by globalisation of trade and hence birth of international uniform laws. It elaborated that the municipal systems recognise the substantive law but the Parol rule of evidence remains under pressure. It further argued that the subjective intention of parties and the in admissibility of evidence of pre-contractual nature or outdated. It also highlighted exchange and bargains as grounds for contracts. In this regard, it argues that the classical theory is outdated and wrong. It concluded that the courts must examine the extinction evidence in order to determine that if the contracting parties have used the words in question in one sense only; by doing so, it would be possible for the courts to give effect to the dictionary meaning of the word as a result of the common intention of the parties.

Bibliography

Acts

CISG art. 1 (1)(a-b).

CISG art. 7

Cases

Perry Engineering Pty Ltd (Receiver and Manager appt'd) v Bernold AG. No. SCGRG-99-1063 [2001] SASC

Beijing Metals and Mineral Import/Export Corporation versus American Business Center Incorporated15 June 1993 U.S. Circuit Court of Appeals

MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.p.A. 29 June 1998

Societe Internationale v. Rogers, 357 U.S. 197 (1958)

Journal Articles

Allen, R. J., & Pardo, M. S. (2002). The myth of the law-fact distinction. Nw. UL Rev., 97, 1769.

Andreason, R. N. (1999). MCC-Marble Ceramic Center: The Parol Evidence Rule and Other Domestic Law Under the Convention on Contracts for the International Sale of Goods. Byu L. Rev., 351.

Beijing Metals and Mineral Import/Export Corporation versus American Business Center Incorporated15 June 1993 U.S. Circuit Court of Appeals

Breukers, S., & Wolsink, M. (2007). Wind power implementation in changing institutional landscapes: An international comparison. Energy policy, 35(5), 2737-2750.

Brunet, R. (1980). La composition des modèles dans l'analyse spatiale. L'Espace géographique, 253-265.

Calamari, J. D., & Perillo, J. M. (1966). A Plea for a Uniform Parol Evidence Rule and Principles of Contract Interpretation. Ind. LJ, 42, 333.

Calleo, P. J. (1999). The Inapplicability of the Parol Evidence Rule to the United Nations Convention on Contracts for the International Sale of Goods. Hofstra L. Rev., 28, 799.

Camp, W. G. (2017). Smith, Hughes, Page, and Prosser. The Agricultural Education Magazine, 89(4), 10.

Corbin, A. L. (1964). Interpretation of Words and the Parol Evidence Rule. Cornell lq, 50, 161.

Davis, K. (1998). Licensing Lies: Merger Clauses, the Parol Evidence Rule and Precontractual Misrepresentations. Val. UL Rev., 33, 485.

Del Duca, L. F. (2005). Implementation of Contract Formation Statute of Frauds, Parol Evidence, and Battle of Forms CISG Provisions in Civil and Common Law Countries. JL & Com., 25, 133.

Feinman, J. M. (1982). Critical approaches to contract law. UClA L. REv., 30, 829.

Flechtner, H. M. (1998). The UN Sales Convention (CISG) and MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, SPA: The Eleventh Circuit Weighs in on Interpretation, Subjective Intent, Procedural Limits to the Convention's Scope, and the Parol Evidence Rule. JL & Com., 18, 259.

Harry M. Flechtner, The U.N. Sales Convention (CISG) and MCCMarble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.p.A.: The Eleventh Circuit Weighs in on Interpretation, Subjective Intent, Procedural Limits to the Convention's Scope, and the Parol Evidence Rule, 18 J. L. & Com. 259, 282 (1999) p. 283-284

Hart, H. L. A., Hart, H. L. A., & Green, L. (2012). The concept of law. Oxford University Press.

Holmes, O. W. (1898). Theory of Legal Interpretation. Harv. L. Rev., 12, 417.

Hong, E., & Sun, L. (2006). Dynamics of internationalization and outward investment: Chinese corporations' strategies. The China Quarterly, 187, 610-634.

John O. Honnold, Documentary History of the Uniform Law for International Sales at 662 (1989)

Juanda L. Daniel, K.I.S.S. The Parol Evidence Rule Goodbye: Simplifying the Concept of Protecting the Parties' Written Agreement, 57 Syracuse L. Rev. 227, 228 (2007).

Karen Halverson Cross, Parol Evidence Under the CISG: The "Homeward Trend" Reconsidered, 68 Ohio St. L.J. 133, 139 (2007).

Lutz, H. (2004). The CISG and common law courts: is there really a problem. Victoria U. Wellington L. Rev., 35, 711.

McCormick, C. T. (1931). The parol evidence rule as a procedural device for control of the jury. Yale LJ, 41, 365.

Moore, D. H. (1995). The Parol Evidence Rule and the United Nations Convention on Contracts for the International Sale of Goods: Justifying Beijing Metals & (and) Minerals Import/Export Corp. v. American Business Center, Inc. BYU L. Rev., 1347.

Olson, A. J. (1976). Parol Evidence in Washington: The Use of Extrinsic Evidence to Address the Integration and Interpretation of Documents. Wash. L.

Peter J. Calleo, The Inapplicability of the Parol Evidence Rule to the United Nations Convention on Contracts for the International Sale of Goods, 28 Hofstra L. Rev. 799, 825 (2000) p. 801-802.

Petra Butler, The Doctrines of Parol Evidence Rule and Consideration Deterrence to the Common Law Lawyer? Collation of Papers at UNCITRAL -- SIAC Conference 22-23 September 2005, Singapore at 56. (2005).

Posner, E. A. (1997). Parol Evidence Rule, the Plain Meaning Rule, and the Principles of Contractual Interpretation. U. Pa. L. Rev., 146, 533.

Posner, R. A. (1998). An economic approach to the law of evidence. Stan. L. Rev., 51, 1477.

Sweet, J. (1967). Contract Making and Parol Evidence Diagnosis and Treatment of a Sick Rule. Cornell L. Rev., 53, 1036.

Vorobey, D. V. (2012). CISG and Arbitration Clauses: Issues of Intent and Validity. JL & Com., 31, 135.

Wiener, R. L., Hurt, L. E., Thomas, S. L., Sadler, M. S., Bauer, C. A., & Sargent, T. M. (1998). The Role of Declarative and Procedural Knowledge in Capital Murder Sentencing 1. Journal of Applied Social Psychology, 28(2), 124-144.

Zuppi, A. L. (2006). The parol evidence rule: a comparative study of the common law, the civil law tradition, and lex mercatoria. Ga. J. Int'l & Comp. L., 35, 233.

Subject: Law and International Law

Pages: 25 Words: 7500

Read

The Future Of Digital Crimes And Digital Terrorism

The Future of Digital Crimes and Digital Terrorism

[Name of the Writer]

[Name of the Institution]

The Future of Digital Crimes and Digital Terrorism

Introduction

In this modern age, technology has advanced to the peak of development on social, economic or individual levels. This has created a current dispensation impacting every user of information technology. Digital terrorism or crime is a problem which is granted to this world by the progression of internet and information technology. The groups of digital terrorists have turned towards the cybercrime activities related to the infrastructure of U.S security. They have attacked and molested the security system through different ways of hacking by using various tools connected to an internet firewall. Due to the prevalence of cyber or digital crime and terrorism, the law authorities and institutions have recognized the acquirement of security measures needed by the users of the internet. New and innovative ways to burglary are being invented and advanced with the coming time by cyber or digital criminals. Therefore this paper seeks to analyze the means through which law enforcement agencies will combat digital or cyber terrorism and crime.

Discussion

Information Technology Combating Digital Terrorism

Information technology has always played an essential role in the economic growth and development of a country. However, it has always been an early adopter for law enforcement agencies to combat digital crime and terrorism. It is considered as a valuable asset for information technology to provide the state or economic system a redefined manner of communication and conduct within the organization. Such that it has opened up new and enhanced ways of dealing and communicating the business, making information technology to impact the global changes throughout the world. However, regardless of the success and development of information technology, it has increased the adverse effects or disadvantages due to the technological invasion. Just because of information technology, criminals have acquired ways through which they lodge attacks through cybercrime and terrorism on the states and authorities.

The progression of information technology in the 21st century has various advanced parts of society, i.e., communication, computer systems, weapons, brain wave sensors, density scanners, and vision enhancers. It made it a lot easier for managing the atrocities which occurred due to digital crimes and terrorism (Geetha & Phamila, 2016). The information technology along with the computers assists in investigating and analyzing the crimes. For instance, computer forensic determines different techniques in computing like identification, preservation, extraction, interpretation, and documentation, for providing evidence in the court.

Existing Challenges

In the United States of America, the law enforcement agencies on local and federal level include Department of Homeland Security, FBI, and many others which have taken a toll on fighting against the digital crimes and terrorism. The responses and roles of such agencies for law enforcement concern the digital crimes that create challenges limiting the enforcement of laws and regulations against digital terrorism. The evolving challenges which are faced by the Department Of Justice are for instance online child pornography, corporate fraud, mortgage fraud, digital terrorism, and digital crime. Such challenges along with many others have created a rift in combating the crimes and terrorism within the US (Finklea & Theohary, 2015).

The foremost challenge faced by these agencies is about privacy rights and confidentiality, as people have this perception that if the law enforcing departments scrutinize their online data, then their privacy is at risk. Other challenges might include a lack of training, expertise, resources, and funding to solve a digital crime. Even after many debates of how it will protect the fundamental interests of the common man, it has not won over this argument. As the crime rate has increased so does the innovations and technological advancement, which worsened the things for law enforcing agencies regarding catching the criminal. The criminals have also advanced with this progression, and they use modern technology like e-mail, tweet or any other means of communication to get connected with the world of crime with anonymity.

Efforts of Federal Agencies

The challenges mentioned above are the growing concerns of state and local authorities on the dangers made identifying with the security at the federal level about computer infrastructure (Alcaraz & Zeadally, 2015). The officers at locality do not have the understanding or comprehension of digital crimes significant in legitimately searching for the offenses, for example, digital terrorism and crime, theft, violations and misrepresentation, and burglary through digital advancement. Having instruction and proper preparing is critical in the examination procedure to pick up a high ground in battling computerized crimes and terrorism. Consequently, the local and state and law authorities communicated worries about asset requirements and dread concerning aptitude and jurisdiction.

The White House has recently proclaimed the formation of a latest federal agency, known as the Cyber Threat Intelligence Integration Center (CITIC). This is created to direct the intelligence on terrorized threats on the cybersecurity of the nation and devise strategies for combating them. Other federal agencies like the Department of Homeland Security, Department of Justice and National Security Agency are currently working on the prevention and defense against digital crime and terrorism. These agencies are providing the awareness in cyber-situational aspect, and they handle the circumstances related to the practical response, critical infrastructure and mitigation support.

Key Future Trends

The future of digital or cybercrime is way beyond the hacking and damaging the computer data and risking the security. The future is under fire, and safety is at higher risk. However, in spite of the advantages gained by technology it also offers extreme danger and threats. The traditional crime is taken over by cyber crimes in many ways. Now a common theft is not done casually; in fact, the online accounts may get hacked. New and innovative ways to burglary are being invented and advanced with the coming time by cyber or digital criminals. Wherever the law enforcing agencies get to one end of catching cyber criminals, they begin a new one.

The future trends show that it will not be something only happening on computers or PCs, but it has access to smart devices, small chips, and cards. Cyber hi-jacking, human malware, cyber assault, cyber extortion, car exploiting, brick attacks, identity theft-squared, and mini-power outages are all the newest trends which will take place in the future, more innovative digital terrorism and crime era (Khakzad et al., 2018). Just because of increased dependency on technology, the vulnerability to the cybercrime is inevitable in the future. Future criminals will not face limitations such as skills, physical proximity and daring.

Conclusions

Consequently, this paper analyzed the role of law enforcement agencies in combating digital or cyber terrorism and crime. It has explored the information technology has always played an essential role in the economic growth and development of a country. The progression of information technology in the 21st century has various advanced parts of society, i.e., communication, computer systems, weapons, brain wave sensors, density scanners, and vision enhancers. The future of digital or cybercrime is way beyond the hacking and damaging the computer data and risking the security. Therefore, the local and state and law authorities communicated uncertainties about asset requirements and dread concerning aptitude and jurisdiction. Federal agencies are working on the prevention and defense against digital crime and terrorism. The future trends show that it will not be something only happening on computers or PCs, but it has access to smart devices, small chips, and cards.

References

Alcaraz, C., & Zeadally, S. (2015). Critical infrastructure protection: Requirements and challenges for the 21st century. International journal of critical infrastructure protection, 8, 53-66.

Finklea, K. M., & Theohary, C. A. (2015, January). Cybercrime: Conceptual issues for congress and US law enforcement. Congressional Research Service, Library of Congress.

Geetha, S., & Phamila, A. V. (Eds.). (2016). Combating security breaches and criminal activity in the digital sphere. IGI Global.

Khakzad, N., Martinez, I. S., Kwon, H. M., Stewart, C., Perera, R., & Reniers, G. (2018). Security risk assessment and management in chemical plants: Challenges and new trends. Process Safety Progress, 37(2), 211-220.

Subject: Law and International Law

Pages: 4 Words: 1200

Read

The Officer And The Drug Arrest

The Officer and the Drug Case

James Grey

[Institutional Affiliation(s)]

Author Note

The Case of Officer Jones

Drug Laws in the US

Laws regulating drug crimes are a territory of intense interest in the United States at present. Numerous states have contemplated drug law reforms, including the increasing authorization of medical marijuana, and, in a couple of states, general marijuana use. These efforts uncover the complicated exchange among government and state drug laws.

Drug crime laws essentially focus on the use and distribution of controlled substances. Government drug laws are administered by the Controlled Substances Act, 21 U.S.C. § 801 et seq., ("the CSA") and most states model their very own drug laws after the CSA. The CSA places drugs in five unique categories, extending from Schedule I to Schedule V drugs. Schedule I drugs are those drugs typically denied by drug laws as they have been esteemed to have no safe accepted use. Schedule I drugs include marijuana, LSD, MDMA (also known as ecstasy), heroin, and different serious drugs. Schedule II drugs have an accepted medical use but are also drugs for which there is a high potential for abuse. Accordingly, Schedule II drug use is allowed distinctly with a prescription. Schedule II drugs include cocaine, methamphetamine, morphine, and different amphetamines. Schedules III-V classify different drugs of shifting degrees of severity and impose certain restrictions on their use, such as requiring that the user has a prescription or is more than 21. Unlike Schedule I drugs, those in Schedules II-V are not, in essence, unlawful, but require that the patient use them in a regulated way.

That being cleared, let us implement the above-mentioned details in the discussion of the case study. The actions of Officer Jones may seem inappropriate, under the “Fourth Amendment of the Constitution of the United States”, that stresses the importance of warrants, and terms the searches that are done without them as “exceptional”. Yet, the courts uphold the rights of the officers in enforcing the law in some situations. The information of the drug peddler was provided to the Officer by his fellows, and there was a hefty chance that the perp would have resisted arrest, either by fleeing or engaging in a fight with the officer. However, this should be noted that lack of warrant can be later claimed as a flaw by the defendant, especially when the drugs are not found after the seizure of the perp, as required by the Fifth and Sixth Amendment of the Constitution of the United States. Also, the criminal should be guaranteed a trial under the Fourteenth Amendment.

As for the question that Officer Jones was justified in the unplanned seizure of the perp without a warrant. The answer is that he was. Under the Fourth Amendment, the tip of the crime must be from a "reliable source", in this case, a fellow officer. Officer Jones had no cause to doubt the information and immediately seize the criminal with the substance of crime on the spot. Simply put, there should be a meaningful cause to the arrest, like a reliable tip, the observance of action, or a full-body research after the detention of the criminal. This can be further explained by Harris v. United States (1947), where the court allowed the search of an apartment for the search of evidence for a crime. Another case is Trupiano v. United States (1948), where the police officer seized the perp with the substance of crime in a distillery. But note that the court might not always declare a warrantless search or stop as lawful. In the case of United States v. Rabinowitz (1950), the officer managed to arrest the defendant in one room and proceeded to search his rooms without a warrant, since the court later ruled that the arrest was not reasonable.

References

BIBLIOGRAPHY Mark H. Moore, M. A. (1989). The Police and Drugs. National Institute of Justice.

Sekhon, N. (2017). Purpose, Policing, and the Fourth Amendment. Journal of Criminal Law and Criminology.

Search and seizure. (2020). Retrieved 18 January 2020, from https://www.law.cornell.edu/constitution-conan/amendment-4/search-and-seizure

Subject: Law and International Law

Pages: 2 Words: 600

Read

The Queensland Governmentâ€™s Approval Of The Adani Coal Mine: An Earth Jurisprudence Perspective

The Queensland Government’s approval of the Adani Coal mine: an Earth Jurisprudence perspective

Roshan

30 January 2020

The Queensland Government’s approval of the Adani Coal mine: an Earth Jurisprudence perspective

According to the decision held by the Land Court of Queensland, announced on 15 December 2015, three mining leases were approved for Adani Mining Private Limited. The decision was announced considering in view the commendations held in the Mineral Resources Act of 1989 (MRA) and the Environmental Protection Act of 1994 (EPA). One of the defendant parties was the Environmental Protection Agency. Later on the statements released by Mr Davies, who belongs to the Environmental Protection Agency, revealed the acceptance of the fact that the current laws were inadequate for protecting and conserving the environment. Interestingly, the entire country is dependent on these laws, when it comes to defending any threat related to environment protection. He stated that,

“The decision released by the Court is not the reflection of what the court was supposed to hear. This decision is in fact, the replication of laws, on the basis of which it was decided. This decision is shortsightedness of the laws we depend over and failure of our, to rightly protect the environment, over which the future of our generations depend. I believe we should value more the land of ours, the climatic conditions we live under, our water resources and the iconic Great Barrier Reef. We need to protect all this from the aggressiveness we might face from the coal expansion.”

This essay aims at analyzing the judgment released by the Land Court. It will also take into consideration, the limit to which the acts refereed above, holds worth in anthropocentrism. The critical analysis of the possible recommendations for a revised legal framework of setting will be represented as well. The essay will support the approach followed in Earth Jurisprudence.

After the coordinators’ general report about tie evaluation of the EIS, the public advertisement of Carmichael Mine was held. It was presented to the general public for the reason of objections under the EPA and MRA. The Conservative group of the Land Services group of the Coast and Country (LSCC) was included as an objector. They were also among the early respondents to the the legal proceedings, mentioned above. LSCC raised their voice against the mining leases, which they believe stand against the substantial environmental concerns of the government and the general public. Their concerns included

Substantial and worse impact the ground water could face and the ecosystem related to it. It also included substantially the Doongmabulla Springs Complex (DSC);

Its effects on the biodiversity, primarily the endangered black- threatened finch (BHF) and the susceptible species of different plants including the waxy cabbage palm (WCP);

The large share of mining during the combustion of coal which produces Carbon dioxide (CO2). CO2 is a substantial hazard and impacts over the climate change in a negative manner. They believe that it furthers the threat for the Great Barrier Reef (GBR)’

Their final concern was related to the financial vulnerability caused by mining, since it stands against the wider public interest.

For examining MRA and the EPA, it is viable to consider the elements of these acts. According to the MRA, the section 2 of the act talks about its objectives

The main and the principal purpose of the act mentioned, is to

inspire and facilitate interested individuals in exploring minerals

widen their knowledge related to mineral resources

limiting the land use disputes in consideration of the prospects for exploration and mining

inducing the responsibility about environment related to exploration and mining

ensuring a worthy financial output to the government

drawing an administrative framework to maximize and proactively regulate the mining of the minerals

ensuring a responsible land care management and administrative setup for prospecting the exploration and mining

An assessment of these objectives reveals that there’s no substantial intention to limit the degradation of the environment, which is a compulsory byproduct of the mineral extraction. In a more lucrative manner, it is right to note that the words, ‘inducing’ and ‘ensuring’, refereed in the clause (d) and (g) present some kind of a hope to mitigate the environmental threats. The spirit of the other text is related to appropriating the land use from totally an anthropocentric prospective. These clauses ensure the commercial and financial usefulness of these projects or such kind of development. In view of these clauses, it is right to argue that the environment substantiality is given a little weight and minimal consideration.

There are many different essential approvals required as per the Queensland Law of the Environmental Authority. According to the EPA, the objects set out in section 3 entails,

“The purpose of this act is to take care of the Queensland’s environment and in the same time allowing the development which improves the level of life, at present and for the future. This must be carried in a manner which protects the ecology and substantiate the development.”

The objective of such clauses entails a more conversationalist approach, however, the agency eyed to attain this purpose by chalking out the guidelines for identifying and protecting the values ascribed to our environment. It wants to do that by introducing a range of factors including some regulatory mechanisms which will protect and preserve the environment from climatic hazards and by limiting other harmful activities. Though this Act, aims at taking the requisite measures to protect any kind of harm to the environment, by any means, but there exist, some limits to it. For example, the harm cannot be limited or restricted if it is caused by a licensed activity. The EP Act provides a patterned system of activities for approving and licensing the activities which pose a reasonable threat to the environment. It also assures mitigating a system of activity to allow minimal threat to the environment.

There are different reasons as to why the EPA and MRA are considered in limited in scope to protect the environment, but the most prominent of them is the anthropocentricism attached to them. Anthropocentricism entails that the primary beneficiaries of the environmental activities are humans and not the environment, though both the humans and economy are inseparably linked. Both the humans and the economy do not aim to conserve the environment, rather they aim at maximizing the threats to the environment, which as a result increase the threats to the environment. This is also apparent from the conclusion of the CAC Macdonald which goes on to write, ‘though there will be environmental damages created by the mines, I analyze that the adverse consequences are outweighed which will overflow from the development of the mines.’

These are some of the reasons that the Earth, we live in continues to face threats and unprecedented environmental challenges which include species extinction, pollution of the air and water, climate change and the destruction of the eco-system. Despite the human efforts aimed at growing awareness and acknowledging the universal efforts to confront threats faced by the Earth, these threats are increasing. There are, also, a growing list of technical improvements which are aimed at curbing the threats to Earth.

The paradigm or the infrastructural abilities of the EPA or MRA reflect the efforts based on the philosophies enshrined in the 17th century science and technology, which enshrines that all natural forces are here to benefit humans and they have nothing else to wonder about. The EPA and the MRA are part of the system which entails no dynamism in view of the dynamic nature of Earth, but they all facilitate and broadens the exploitation and the consumption of the Earth’s resources. During all such changes, humans have remained busy in creating a world, which was centered on them and which represent their delusory nature. All such efforts of humans are separate from the nature, which Corman Cullinan mentions as the ‘wild law’ and as homosphere. In all our efforts we oversaw the biosphere, to which humans are inextricably linked. Such aspects of human evolution suggest that we, the humans, have accepted our superiority over nature and the different natural processes. This is all based on the notion that earth, nature and different natural phenomena have encapsulated the humans. The laws that we gradually drew out are not adamant of the fact that we are bound in planetary boundaries. The humans consider themselves as not being able to obey certain laws of physics and of the nature.

Humans’ paradigm of development and successes is out dated. There are many different things like the GDP, we consider as the representative of our growth, which is truly wrong. The environmental crisis, we face today is adamant of the fact that humans are living under a wrong impression. The GDP is solely related to the number of products being produced and the human well-being. These conflicting aspects suggest that humans need to challenge and ultimately devalue the root causes of the system of governance, which includes the economic system as well. It is so derogatory to leave the health of the nature and progression to some artificial means, like the humans did in the case of EPA and MRA.

Jared Diamond’s book “collapse” talks about so many civilizations which were warped, since they were unaware of the threats they faced. These civilizations went down, since they learnt to live in a system, which they believe strengthens their ability to fight the menaces, which was actually wrong. It has also been explained by Karl Marx in his thesis, where he mentions that different philosophers have just interpreted the world, though, the real challenge is to change this. A positive change comes, when we (the humans) let go of the small profits and eye toward greater benefit, as illustrated by Adani Mine. In our case, we humans need to shift our goals to develop a sustainable economic change and also need to evolve from the barbaric things we have been encountering.

Since, we are living in a new and improved world, therefore, we need to change this system of governance and; with the help of both the science and the tribal experience of the past, need to develop a more compatible system. This all requires to adopt a new Earth Jurisprudence.

This new jurisprudence of the Earth will be related to the changed perspective of the Humans and will help to build an evolved framework of law, which will not only be beneficial for the human existence, but will monitor the human behavior with regard to the ecological changes. By developing this humans will be able to keep their activities within the context of the ecological sustainability. This new Earth Jurisprudence will help to give a legal cover to the animal species as well. These species will also get an advantage, since it will provide them a right to play within the ecosystem. These rights will include the right to life, thriving and existence. If one needs to understand the natural rights of nature, he or she needs to broaden his or her scope from the primitive thinking and requires to accept the humility, which some humans are not able to determine. Us humans need to understand that nature decides whatever is intrinsic or extrinsic. Humans need to rightly understand that their rights do not, by any way, cancel the rights of others.

This new framework of laws or jurisprudence will help to align the ecology of humans to sustain the life. They will help us to achieve what the central purpose of the environmental laws should be. The new Earth jurisprudence will help to create a new societal value stream as well, which will as well contribute positively to human social structure. These new structure relevant to Earth’s jurisprudence will eventually take into fold each area of the society which at present relies on nature in one way or another. Nature will no longer be considered as the property, or will no longer be available to be exploited for certain gains. The rights of nature will ensure its integrity and will support a system which will be more everlasting. There will be no longer the exploitation of the earth’s resources as well. The new Earth Jurisprudence will give a blow to the idea of anthropocentric ideas. It will finally be self- aggrandizing, if humans think that new jurisprudence will benefit them in any way.

Establishing and writing the new rights of the nature will be an important step and will lead humans toward a more sustainable and ecological friendly change. It will also provide a counter balance to the so called corporate rights, human have been working over, for many long. Earth Jurisprudence or the natural rights of the Earth must not just be a fading effort. If it remained a fading system, it will lead the humans to a destructive future.

However, if the humans are able to create and successfully implement the Earth Jurisprudence it will then allow the black- throated finch, the cabbage palm and the Great Barrier Reef a more sustainable and ecologically friendlier environment. However, otherwise it is clearly depicted in the decision of the Land Court that conservation remains not more affordable in any way. Earth Jurisprudence therefore, will help to determine that other species have the same rights on the surface of Earth as humans have.

There is an overwhelming bundle of proof that human-oriented Earth laws are not more reliable anymore. Humans need to accept the fact that their current paradigm is not responding to their problems. As Al Gore noted that ‘we are at a fork in the road, where we are as well as species.’ Humans need to walk away from the different forms of energy, which are subsidizing their past. Importantly, we all need to accept that change happens when we start accepting our duties for change.

Bibliography:

A Articles / Books / Reports

• Diamond, Jared Collapse (Viking Press, 2006).

• Diesendorf, Mark and Hamilton, Clive Human ecology, human economy; ideas for an ecologically

sustainable future (Allen & Unwin, 1997).

• Dobson, Andrew (2006) ‘Ecological citizenship’: a defence’, Environmental Politics, 15(3): 447-51.

• Dobson, Andrew and Bell, Derek Environmental Citizenship (The MIT Press, 2006). • Gore, Al, Our Choice (Bloomsbury Publishing, 2009).

• Hamilton, Clive Growth Fetish (Allen & Unwin, 2003).

• Hanna, Susan S., Folke, Carl and Maler, Karl-Goran Rights to Nature Ecological, Economic, Cultural, and Political Principles of Institutions for the environment (Island Press, 1996) 4.

• Rock, FAss Joachim ‘Ecosystems and Human Well-being’ (2006) Vol 1 Ch 5 Univ. Potsdam, Institute of Geo-Ecology 1-2 https://www.pik potsdam.de/members/cramer/teaching/06/mea_jrock.pdf.

B Cases

• Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48. • Adani Mining Pty Ltd and Another v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People [2015] NNTTA 16.

• Australian Conservation Foundation Incorporated v Minister for the Environment [2016] FCA 1042.

• Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095.

C Legislation

• Environmental Protection Act 1994 (Qld)

• Environment Protection and Biodiversity Conservation Act 1999 (Cth).

• Law of the Rights of Mother Earth 2011 (Bolivia).

• Mineral Resources Act 1989 (Qld).

D Other

• Amos, Cameron and Swann, Tom Carmichael in Context Quantifying Australia’s Threat to Climate Action (November 2015) http://www.tai.org.au/sites/defualt/files/Amos%202015%20Carmichael%20in%20context%20.pdf.

• Constitution of Ecuador 2008, Chapter Seven: Rights of Nature. • Earth Law Centre, What do we mean by Inherent Rights of Nature? (2015)

http://www.earthlawcenter.org/faq/.

• Gore, Al Climate Reality Leadership Program, Delhi, India (2015).

• John Quiggin, Adani should bow out gracefully from its Carmichael coal mine (31 August 2016)

The Conversation https://theconversation.com/adani-should-bow-out-gracefully-from-its

carmichael-coal-mine-64608.

• Marx, Karl Theses on Feuerbach, 11th Thesis (Die Neue Zeit, 1888).

• People’s Tribunal for the Rights of Nature hosted by the Australian Earth Laws Alliance (AELA), Banco Court, QEII Courts of Law Complex in Brisbane, Queensland, 22nd October, 2016.

• Universal Declaration of the Rights of Mother Earth.

• US President Obama, State of Union Address (13 January, 2016).

Subject: Law and International Law

Pages: 7 Words: 2100

Read

The State Judicial Selection Process

Vincent

The State Judicial Selection Process

The Constitution of the U.S. has defined a clear line of authority between the Federal Government and the states. United States Constitution protects the right of states to form laws related to any matter which is encompassed by their jurisdiction. The states form their laws according to their own needs and crime rate. However, the states are not entirely sovereign as the Constitution places certain limits too.

As much as the judicial system is significant for the country, the transparent and reasonable selection of the judicial system is equally important. For judicial selection, two methods commonly used include election and appointment. Some of the states of the U.S. adopt the election method, while most states choose a hybrid of elective and appointive positions (Behrens & Silverman, 2001). It is observed that some states only carry out elections for the appointment of judges, while others select some of the judges through the merit selection procedure.

The Judicial Selection Process of Georgia

Georgia has three federal district courts, one state Supreme Court and one state court of appeals, and multiple trial courts. There is a lot of changes being made in the Georgian judiciary to improve. Numerous laws are amended after the intensive reforms. While the judicial system is undergoing several changes, analysis of the current standing of the judiciary is significant so that the extent ad impact of reforms can be evaluated.

Different Kinds of Courts in Ga

The state of Georgia conducts the judicial election every even-numbered year, which takes place on a primary date. 23 states of America conduct the non-partisan or partisan judicial election, and Georgia is one of those states. The Supreme Court conducts a Non-partisan election for the judge appointment who serves for six years. For the Judge of the Court of Appeals, Non-partisan elections are conducted, and the Judge serves for six years at the office. The judges of the superior court as well State court are appointed through the non-partisan elections and serve for four years.

The candidate for the superior court must be at least thirty years old and have experience of a minimum of seven years. The Judge must also be a resident of the circuit he or she wants to join and a state resident for three years.

The runner for the Supreme Court judge must be a Georgian resident and should have practiced law for a minimum of seven years.

The condition for appointment of a judge is that he or she must be a Georgia resident and possess relevant experience of no less than seven years.

However, the Probate Court selects it to judge through the Partisan election, which is selected for a four-year term. For this court, the retention of a judge can be made through the reelection. The qualification for this post includes U.S. citizenship, residency in the country for 2 years. Moreover, the Judge must complete an initial training course and, when also required the additional training as required. The academic qualification required is a high school diploma. The candidate must be a minimum age 25 and must be a registered voter.

The individual who runs in the election of State Court must be a state resident for minimum three years and should have the practiced law for at least seven years. For retention, the reelection is conducted. The minimum age limit for this post is twenty-five years.

Removal Procedure of Judge in Georgia

In state of Georgia, one of the two ways are implemented to remove a judge from the post. Firstly, the Judge can take retirement, be disciplined, or removed from the office by the judicial qualifications commission. The Commission was formed by a Constitutional Amendment of 1972. This Constitutional Amendment was revised in 2016, which empowered the Commission to launch investigations and conduct hearings related to complaints filed against the Georgia Judges under the ethical misconduct allegations. It can also release Advisory Opinions related to judicial misconduct. The Commission has ten members, out of which seven are appointed on the Investigative Panel, which investigates and impeaches the judges regarding misconduct. The other three on the Hearing Panel, act as a referee when the investigative panel co duct the investigation.

The other method to remove a judge is through voting. The house of Representatives can impeach Judge and if two-thirds of votes of the Senate are in favor of removal of a judge, the Judge is removed.

The Judicial Selection Process Of New York

The judicial system of New York is known to be one of the most intricate amongst fifty states of America. The courts including the family court, the surrogate's court, the court of claims, the supreme court, appellate division of the supreme court and the court of appeals operate through the state of New York. The courts in which the only function in the city are criminal and civil courts of New York. New York refers to the major trial court as the supreme court, however, most of the states consider it as a court of last resort.

Different Kinds Of Courts In New York

In the majority of the court, judges are selected through partisan elections, however, the appellate courts and other limited jurisdiction courts choose Judge through the assisted appointment method.

Court of Appeals

In the Court of Appeals, seven judges are selected by recommendation of the Governor who chooses from a list made by a judicial nominating commission which is then pending for the affirmation of state Senate. The condition for appointment includes state residency, ten years’ experience in law and age less than seventy years.

Supreme Court, Appellate Division

In the Supreme Court, Appellate Division, the chief justice is selected through the gubernatorial appointment. The Judge must be state resident as well as have ten years of experience in the law field. The retirement age is fixed at seventy years.

Supreme Court

The judges of the Supreme Court are nominated through Partisan election. The Judge must be first selected at partisan nominating conventions so that he or she can appear on the ballot. Two supreme court chief administrative judges are appointed by the court of appeals chief judge. The judges requiring performing an additional term should apply for the reelection. For this post, the Judge must be of age seventy and have served for at least ten years within the state.

County Courts

County courts also conduct partisan elections to nominate their judges. The requirement includes the minimum experience of ten years of practicing law in the state and at the age of seventy, the Judge has to retire.

Court of Claims

With approval from the state senate, the Governor appoints the Judge in courts of the claim. The application for this post requires the Judge to be at least 18 years old and a state resident. He should have practiced for a minimum of ten years within the state. At seventy years of age, the Judge must retire.

Family Courts

The judges at family courts are selected through Partisan elections outside Of New York, however, within New York City, they are selected by the mayor. Family court judge must be at least eighteen years old and has experience of ten years in the law field for a minimum of ten years. The Judge must retire when he or she reaches the age of seventy.

Surrogates' Courts

Judges of Surrogates' Courts in New York are designated through partisan elections. For this position, the Judge must have partied law within the state for ten years and should be a resident of the state.

New York City Civil Court

New York Civil Court judges are appointed through the Partisan elections. The exception lies here that the New York City Housing Court judges are nominated by the Chief Administrative Judge. Judge for this post requires to have experience in the field of law for minimum ten years and should be at least eighteen years old. The retirement age condition for it is seventy years.

Criminal Court

For the criminal court of New York, the Judge must be a state and city resident and should have practiced law for ten years in the state. The compulsory retirement age for the Judge is 70 years old.

District Courts

District Court judges are selected through the partisan elections for a service of six years. At the end of each term, they can be reappointed. The necessary conditions for running in elections for District Court, the candidate must be resident of state and county for a minimum of eighteen years and has practiced law for ten years within the state. The mandatory retirement age is seventy years for this position.

City Courts

The judges for the City Court are nominated according to the municipality. The conditions for serving on this court include state and city residency for at least 18 years old and have practiced law in the state for a minimum of ten years. The obligatory retirement age is seventy years. The judges who are appointed for fill-time service perform for ten years. On the other hand, judges on part-time appointments serve for five or six years.

Town and Village Courts

Partisan contested elections are conducted to nominate the judges of Town and Village Courts of New York State. The service period is four years. The Judge should be resident of state and, town or village for minimum eighteen years.

Removal Procedure of Judge in New York

In the judicial system of New York, the Judge can be removed in three ways. Firstly, the Judge can be reprimanded, condemned retired or the Commission on judicial conduct reserves the right to remove the Judge. However, any action taken by the Commission has to be reviewed by the court of appeals. The Commission which is dedicated to supervising judicial conduct has to investigate complaints filed against the Judge. If they find that Judge was involved in unethical practice of hi powers, the Commission can determine if to reprimand or remove the Judge from office. There are total 11 member in the Commission who are appointed by the governor, Chief Judge and each of four Senate Legislature Leaders. The members, without compensation, serve for four years. The offices of Commission are situated in New York City, Rochester and Albany. The Judge who receives any such punishment has the right to request the Court of Appeal to review his case.

The second method to remove a Judge of either supreme court or Court of Appeals is to cast votes. If the two-thirds of both houses of Legislatures vote to remove, the Judge will be removed. Other judges of the state can be removed if the governor recommends and the removal decision receives two-thirds of the votes by senate.

Thirdly, if the assembly casts popular vote in favor of removing the Judge, the Judge can be prosecuted and sent for trial of impeachment if two-thirds votes are cast against him or her.

Comparison

The appointment of judges into the office for practice of justice can be effective only when the procedure to select the judges is transparent and reasonable.

Judicial selection in Georgia primarily based on gubernatorial method of selection which is more inclined to political influence (Geyh, 2008). It is because judiciary of Georgia is selected or removed according to direction of the Governor and judicial committee. Selection and appointment procedure of judges in the Supreme Court of Georgia currently seems to lack transparency and liability (Warsaw, 2019). On the other hand, the judicial system of New York conducts the partisan elections to nominate the judges which involves public, which reduces the chances of biased decision. But the selection procedure of New York varies on different levels.

The criminal and civil courts are separate unlike the judicial system of Georgia. Thus, a greater number of judges are appointed in New York as compared to Georgia. New York refers major trial court as the Supreme Court, however most of the states consider it as court of last resort. It is evident that the judicial selection system of Georgia is much simpler than that of New York.

The procedure for the removal of Judge is almost similar in both states. Both either require the Commission or the votes cast against them to remove them. The conditions for the removal however differ a little in both. However, both the state allows the judges to request the Court of Appeal to review any decision made against them.

Four out of five types of court in Georgia conduct non-partisan elections. While nearly half of the courts in New York conduct partisan elections. In my view, the judicial selection system of New York is much better. Even though it does have flaws, but the necessary amendments can make it a model system for other states.

Conclusion

The procedure through which the judges are selected is of great significance to unbiased implementation of Constitution and it eventually forms a high-quality judicial system (Flango & Ducat, 1979). Such producers should be implemented for the selection of judiciary which would guarantee the integrity of courts and separate those who are selected due to political pressure, to gain personal benefit or any other way which can induce partiality and prejudice in the justice system. Unfortunately, this basic requirement of an autonomous judiciary could not be implemented completely anywhere yet (Geyh, 2008). However, states try to improve and amend the law for better judicial system. In this paper, the judicial system of New York State and Georgia state are discussed and compared. Both of the states have an almost similar structure for judicial selection.

References

Behrens, M. A., & Silverman, C. (2001). The Case for Adopting Appointive Judicial Selection Systems for State Court Judges. Cornell Journal of Law and Public Policy, 11, 273.

Flango, E., & Ducat, C. R. (1979). What Difference Does Method of Judicial Selection Make Justice System Journal, 5, 25.

Geyh, C. G. (2008). The Endless Judicial Selection Debate and Why It Matters for Judicial Independence. 21, 25.

Warsaw. (2019, September 10). Shortcomings abound following changes to the nomination and appointment of Supreme Court Judges in Georgia, ODIHR report finds | OSCE. Retrieved December 24, 2019, from https://www.osce.org/odihr/429572

Subject: Law and International Law

Pages: 5 Words: 1500

Read

The State Judicial Selection Process

James Grey

[Institutional Affiliation(s)]

Author Note

The State Judicial Selection Process

Every state in the U.S. has its own particular judicial selection processes within the court system. In general, there are four main methods that are in use: partisan elections, appointment selection, merit selection, and nonpartisan elections. Even these methods can vary across courts in a particular state. The paper will examine the judicial selection processes in the state of Georgia and Alabama and compare their judge selection and removal procedures. These processes will be further analyzed to observe which system works best.

Judicial Selection Process in Georgia (GA)

The judicial system in Georgia consists of a supreme court, a superior court, and an appellate court, alongside various trial courts. Judges are selected based on both gubernatorial appointment and nonpartisan elections. As vacancies are created, Georgia’s judicial nominating commissions are tasked to recommend candidates. Judges are subsequently appointed to the bench and then retain their position by contesting nonpartisan elections. Furthermore, these elections are limited to state court judges whereas any interim vacancies in the general jurisdiction and appellate courts are filled through assisted appointment. In case of the limited jurisdiction courts, they use a mix of selection processes which includes nonpartisan and partisan elections. Following the election, Judges begin their term on the 1st of January in the Supreme Court of Georgia and the Court of Appeals.

The state of Georgia appoints nine justices for the Supreme Court. Each judge is allowed to serve a six-year term after which they have to compete in a re-election to retain their position. Following elections, the chief justice serves for four years after being selected through a peer-vote. To serve the Georgia Supreme Court, the judge has to be a licensed practitioner of law for a minimum of seven years and has to be a resident of the state. A mid-term vacancy is filled through an assisted appointment in which a list of qualified candidates is narrowed down by the judicial nominating commission. The governor then chooses a judge on an interim basis who must contest nonpartisan elections within six months of appointment. Upon confirmation, the judge may complete the term of his/her predecessor. In case of the Court of Appeals, fifteen judges are chosen through nonpartisan elections to serve six-year terms. The selection process closely mirrors the Supreme Court; however, the Chief Judge serves a two-year term instead of four CITATION Fle07 \l 1033 (Fleischmann & Pierannunz, 2007).

In Georgia’s Superior Courts, 202 judges are chosen in total to serve four-year terms. The selection process is similar to the Appellate Court and the Supreme Court, except the process of selecting the chief judge. Likewise, the appointed judge must be over 30 years of age and should have practiced law for a minimum of seven years. Moreover, the judge must be a resident of Georgia for at least three years besides being a resident of the circuit in which he is appointed. In each of these appointments, the judicial nominating commission plays a major role. It was established through an executive order passed by Governor Jimmy Carter in 1972. The assisted appointment method has, since then, remained a tradition in Georgia’s judicial selection process.

Judicial Selection Process in Alabama

In the state of Alabama, the judicial system consists of the Supreme Court, the Court of Criminal and Civil Appeals, and four trial courts which include the district, circuit, municipal, and probate courts. The circuit court has general jurisdiction and serves as the primary trial court in the system. The main judicial selection process in the state is direct nonpartisan elections. In case a vacancy occurs in between the term, the appointment is made by the governor to fill the seats. However, a judicial nominating commission still operates in some counties to narrow down a list of candidates. The state court judges are primarily selected through partisan elections. The general jurisdiction and the appellate courts share the same appointment procedures and qualifications in terms of length, vacancy fulfillment, terms, and re-election processes. However, these courts may differ in their process to appoint the. chief justice. The limited jurisdiction courts closely mirror the same process but differ in the qualifications criteria for the judges CITATION NCS191 \l 1033 (NCSC, 2019).

The state of Alabama appoints nine judges on the Supreme Court bench, in which each completes a six-year term. The judges are selected based on partisan election balloting across the state and require to be re-elected if they wish to serve the bench again. To be elected to the Supreme Court, a judge must be a licensed practitioner of the law for a minimum of 10 years and must be residing in the state of Alabama for at least a year. Moreover, the judge has to be under 70 years of age during the election phase but may continue to serve their term until the period expires. Elections are held according to a regular schedule; however, if a vacancy is open in-between the schedule, then an interim judge is directly appointed by the governor to fill the position. The Court of Civil Appeals and the Court of Criminal Appeals both require 5 judges to be instated CITATION NCS191 \l 1033 (NCSC, 2019). Judges serve a six-year term and every aspect of the selection process is overseen by the Alabama Supreme Court, save for the chief judge selection. A key difference is that the Court of Criminal Appeals selects its chief by peer-vote whereas the Court of Civil Appeals chooses its chief on a seniority basis.

In the case of Alabama’s Circuit Courts, each judge is likewise elected to serve a six-year term. A total of 144 judges are appointed across the state in which the selection process is the same as the Supreme Court, except for judicial qualifications and chief judge appointment. The chief judge of the circuit court serves for a three-year term and is selected by peer vote, however, the only eligible voters to elect the judges are those that reside within the jurisdiction of the same circuit. The qualifications needed for the circuit court include: an experience of five years as a practitioner of law, residency in the circuit’s area for a minimum of one year, and age under 70 years. However, a judge elected before the age of 70 may continue to serve his/her term until the time expires. In the case of limited jurisdiction courts, such as the municipal, probate, and the district courts, judges are selected through nonpartisan elections but require that a judge be a registered voter of the same district in which he/she will operate. The city courts, however, do not have the same regulations in place.

Comparing Selection and Removal Processes

The judicial selection processes in Alabama and Georgia share a number of similarities. For instance, both states require that the judges in the top and lower jurisdiction courts are experienced practitioners of law and adhere to a higher standard of ethical conduct. The Supreme Court in both states appoint seven judges to their respective bench and each requires judges serving in the appellate courts to be above 30 years of age CITATION Fle07 \l 1033 (Fleischmann & Pierannunz, 2007).

Some of the differences in the judicial selection process occur in the qualification requirements. The Supreme Court of Georgia requires that each judge has at least 10 years of experience whereas in Alabama, a minimum of 8 years can suffice. The appointment of the chief justice of the Appellate Court in Georgia is subject to the judicial commission and the governor's approval. Similarly, the Superior Courts in Georgia also require a 10-year experience in law CITATION Fle07 \l 1033 (Fleischmann & Pierannunz, 2007). Georgia does not have functional courts at the City and District level whereas in Alabama, the Circuit, District, and City Courts require that a judge should be a registered voter of the area and that they should be above the age of 28.

In case a judge needs to be removed, both Alabama and Georgia have nearly identical processes. Any disciplinary proceedings against a judge, for violating the judicial code of conduct, involves the Supreme Court and the General Assembly who decide through a majority vote. In the case of Alabama, judges may be removed if a judicial inquiry commission is able to substantiate complaints against a judge and files a complaint on its behalf to the court. The court, thereafter, decides to suspend, censure, or remove a judge. In case of removal, a judge is able to appeal to the Supreme Court. Secondly, a judge may be impeached in case of a breach of code. Similarly in Georgia, a judge may be removed if a judicial qualifications commission decides to retire, discipline, or impeach a judge. However, these retirement and removal decisions are overseen and reviewed by the Supreme Court. Furthermore, a two-thirds vote in the House of Representatives and Senate by also lead to an impeachment CITATION NCS191 \l 1033 (NCSC, 2019).

Best Selection Process

The quality and transparency of the judicial selection process directly impact the quality of the judges who are appointed into a state's judiciary. The state of Georgia prefers a gubernatorial method of selection whereas Alabama relies on partisan election methods to select its judges. In my view, the gubernatorial method of appointment is prone to political interference because it encompasses a direct involvement of the judicial committee and the governor. It is possible for a governor to appoint a judge based on personal ties or interests, or under the influence of another judicial stakeholder. In turn, the judicial selection process may potentially lose legitimacy if the general public views the judge to have gone rogue and abusing his/her power CITATION Gey18 \l 1033 (Geyh, 2018). On the other hand, states like Alabama that use the partisan methods of electing judges directly involve the public instead of political leaders, which provides the process with additional legitimacy. The partisan election system puts power back into the hands of the public and prevents influential people from exercising their own judgment in the selection process. Although, some suggest that a judge should not be selected on basis of political superiority, however, the name of the political parties do not appear in the election and nomination process CITATION Kec14 \l 1033 (Keck, 2014). Therefore political controversies are avoided and judges are selected through popular vote. It is, therefore, that Alabama’s judicial selection process can be deemed more fair and transparent over Georgia even though both systems carry merit.

References

BIBLIOGRAPHY Fleischmann, A., & Pierannunz, C. (2007). the Legal System. In Politics in Georgia (2nd ed., pp. 223-243). Athens, GA: University of Georgia Press.

Geyh, C. G. (2018). Judicial Selection and the Search for Middle. DePaul Law Review, 67(2), 333-368. Retrieved from https://via.library.depaul.edu/law-review/vol67/iss2/8?utm_source=via.library.depaul.edu%2Flaw-review%2Fvol67%2Fiss2%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

Keck, T. M. (2014). Judicial politics in polarized times. Chicago, IL: University Of Chicago Press.

NCSC. (2019). Methods of Judicial Selection. Retrieved July 29, 2019, from National Center for State Courts: http://www.judicialselection.com/judicial_selection/methods/removal_of_judges.cfm?state

Subject: Law and International Law

Pages: 5 Words: 1500

Read

The Theory Of Change Of Circumstances

The Doctrine of Changed Circumstances in Contract Law

Section 1: Introduction

A contract has the force of law if it is formed in accordance with the provisions of law. This principle is known as pacta sunt servanda. This principle has been established in most legal systems deriving from the Canon laws. However, the principle is not absolute. That is the reason why infringements on good faith, reasonableness, and justice keep rising as a result of the strict application of this principle. For this reason, a compromise between the principle of pacta sunt servanda and the clausula rebus sic stantibus is strived by the legal theory and practice. The new principle states that the contract remains binding between the parties so long as and to the extent the subject matter of a contract remains the same as it was made at the time of formation of the contract. Over the time, different historical circumstances and legal traditions have played the role in giving rise to a number of limits on the principle of pacta sunt servanda.

However, the effect of changed circumstances in contracts is not entirely explained in most of the cases. For instance, investment in infrastructure is a long-term project. Many governments seek to attract expertise in capital due to the lack of the expertise and resources to financing and maintaining the infrastructure on their own. In this regard, the governments offer predictable revenue streams on that particular project over a period of 5 to 30 years International banks and developers that look to the longer end of the spectrum depending on the nature of the investment. For this reason, the host governments and the investors establish of pricing scheme concerning off-take agreements and production sharing arrangements and concessions in typical contracts related to investment. The purpose of the pricing scheme is to assure adequate revenue to the investors for covering their services obligations along with the high profit on the invested equity capital. The pricing schemes are established my keeping in view the risk profile and the possibility of an eventual return of the equity capital to the investors. Moreover, the pricing schemes are expected to allow for the adjustments over the life of the contract due to the demand of the sophisticated investors and lenders. The pricing schemes must allow adjustments for changes in currency valuation, the effects of inflation and other changes in law.

Section 2: Origins

However, the effect of changed circumstances in many cases is not entirely explained. Therefore, the landers and investors have to consult the legal regimes that cover their connection with the government hosting the project. In a typical situation, the law of the host government governs the so cold project contract between the parties whereas block the International Financial guarantees and facilities consists of either England and New York and sometimes France. As a matter of fact, it entirely depends on what part of the world the contract has been formed between the contracting parties.

Under these situations, dichotomy exists as to preservation of long-term contracts as well as the source of many conflicting understandings among practitioners. Countries, where the main multilateral banks, international commercial lenders, and their representatives are resided, with common legal traditions do not have to suffer under these circumstances due to the fact that they understand contract as allocation of the risk of unforeseen events between the contracting parties particularly the contracts with a fixed price. Practitioners from such countries are trained to think that the terms of the contract should be in force except in the most extreme circumstances. Please practitioners also trained to think that the parties must insert price adjustment and other clauses for safeguarding against risks. There is no recognized mechanism on legal theory for a contract to be adjusted by an arbitral Tribunal or a Court except put the rarely invoked common law doctrine of the formation of contracts.

For instance, in the United States of America, any court has never adjusted the contractual terms due to a change in circumstances. As a matter of fact, there is only one prominent decision to this effect in all of the American jurisprudence and commentators have also roundly criticized it. For this reason, a contract is either enforced or avoided (especially in the cases of bankruptcy) if the change in circumstances is extreme.

The Civil law traditions are practiced in many states that receive foreign investment in infrastructure. It indicates that the French Civil Code and its Roman Origins have inspired the legal systems. The philosophy tends to be, without considering the differences between various Municipal legal systems and as this legal tradition has evolved, a contract sets and economic balance between the contracting parties as they entered into it. If this economic balance is significantly disturbed by the change in circumstances in a long-term contract, the contractual terms may be adjusted to preserve it. The contracting parties reserve the right to go to the courts as well as administrative tribunals for re-establishing the balance if they remain unable to agree on the scope of the adjustment. However, practitioners trained in common law countries seek to neutralize or contain this concept through contract drafting, as they tend to be very suspicious of it. The general legal principles in the host country prevail if the practitioners have not addressed the change in the circumstances.

Difficult situations in performance of the contract often arise due to natural or manmade events. Since the Russian crisis in the mid nineties, drought-inspired power shortages, the devaluation of the Real in Brazil, the Asian contagion leading to collapsing of the Indonesian economy, and the Argentine crisis starting in 2000, the recent history provides a wealth of examples. As a result of these events, numerous disputes arose between host governments and their investors. Some of these disputes have also resulted in published arbitral awards.

Over the time, the researchers and practitioners have discussed and written a lot about the doctrine of change in circumstances and its effect on the performance of a contract along with the broader issue of allocating risks long term contracting under such situations. There are common threads in these disputes despite the fact that they have arisen in projects of different countries. These observations are applied to the issues the domain of the greatest concern to the investors World confronting the effect of changed circumstances in either a dispute or a contract negotiation.

The theory of change in circumstances evolved as the Roman law evolved. The basic principle of this theory revolves around the fact that if the performance of a contract is possible but has been rendered due to any hardship fundamental change in circumstances then the principle of clausula rebus sic stantibus can be invoked by the affected party. As pointed out earlier, this principle states that the contract remains binding between the parties so long as and to the extent the subject matter of a contract remains the same as it was made at the time of formation of the contract. To be specific, this principle implies that every contract contains a clausula (implied term) which means that the important circumstances surrounding the contract must remain sic stantes (unchanged).

As pointed out by one author, this principle was codified as a part of the private law in the 18th century. However, due to its lack of clarity and weakness, this principle was subsequently criticized and thus, fell out of disfavor in an era of party autonomy being emphasized by liberal theories, i.e., the 19th century. As a result of the destruction caused by the First World War, the principle was then resurrected in the 20th century on the grounds of French administrative Court ruling in a dispute between the City of Boredeaux, France and private power company.

The dispute arose in 1916. The company known as the Gaz de Bordeaux or Compagnie générale d’éclairage de Bordeaux was granted concession providing gas lightning to the City of Bordeaux by the government. Although the contract had a fixed price but it also came with a closed for adjustment mechanism of the price beyond a certain range of fluctuation. Due to the First World War, the price of the coal increased. Therefore, earning revenues out of the fixed price contract was no more a possibility for the company. The administrative tribunals ultimately the French Conseil d’Etat heard the dispute related to a concession for a Public Service. The letter decided that the under the given circumstances, the adjustment mechanisms in the concession agreement remained insufficient. For this reason, the economic viability of the contract had been undermined. Based on this argument, the court decided that the company was not required to perform the services as per the original conditions.

In this regard, the court set out the elements of circumstances permitting a temporary adjustment of administrative contracts especially the ones concerning concessions. As a matter of fact, the event must result in a profound and balancing of the contract, exceed all reasonable expectation, and had to be external to the parties and thus, unforeseeable. For the purpose of preserving the long-term viability of the contract, the solution must be temporary. Based on this decision, the doctrine of change in circumstances has come to known as thethéorie de l’imprévision which means hardship. This principle emphasizes on the enforceability of the events under circumstances. The upshot of the decision was that the City must pay compensation to the company. If the contracting parties do not agree on the amount, others must fix it for them.

According to a famous Roman maxim, "there is no obligation to the impossible." Therefore, the uncertain events excuse performance of the contract is the particular focus on two types of contracts, i.e., sale and stipulatio. For instance, the contract of sale cannot be validate if the object sold had perished prior to the sale or never existed. Simultaneously, it is also true that a parties excused from performance of contract if that performance had been made impossible after the formation of the contract due to an uncertain event provided that the party being excused is not at fault. However, it cannot be concluded that a party is excused from performance of a contract under the Roman law if it was not at fault in the ordinary sense if its performance became or was impossible. According to one text, the performance of the contract is excused only if beyond anyone's power to perform the contract and not merely beyond the power of the claimant party. Putting it in simple words, impossibility must not be personal or subjective but absolute or objective. For this reason, a party cannot escape performance of a contract primarily due to the fact that it was unable to perform it and it was not at fault in the ordinary sense of the world.

Therefore, a party who borrowed a property is responsible for exercising due diligence in this regard. However, the party would not be held liable if bands of robbers or invading enemies destroyed the property. The question in this situation revolves around the fact that why a party should be held liable for failing to be more diligent than the diligent. According to the modern scholars, the party was liable for custodia, under the Roman law. It meant neither strict liability nor negligence. For this reason, a party liable for custodia was liable for that could have been prevented if proper care was used but the same party would not be liable for vis maior which meant accidents that could not be prevented. This kind of fault has been classified as most light fault (cupla levissima) by the mediaeval jurists.

However, the medieval Canon lawyers turned fault and impossibility into basic principles of moral responsibility. It means that a person or a party under the contract cannot be morally held responsible to do the impossible. As Gratian said, one must choose the lesser sin when every alternative course of action is sinful. For the matter under discussion, he indicated towards breaking a promise under the contract. For example, one must break the promise to keep the secret of a friend after he discovers that he is planning a murder. Canonists later rejected the position of Gratian. From the point of view, no one is morally obligated to commit a sin. They argue that one could not be obligated to do the impossible. Therefore, it is not sinful to reveal the secret of a friend under the given circumstances where it should be revealed. Simultaneously, the Cannon lawyers concluded that a person failing to use due care is both morally obligated and morally guilty to compensate the harm that he has caused. Nevertheless, the Cannon conclusion was in tension with the Roman limitations on civil liability.

In order to explain the Cannons conclusions, Thomas Aquinas made use of the Aristotle's theory of human responsibility in the 13th century. He explained that the performance of a contract revolves around the choice and the choice was an act of will and that a person can only choose what is possible to perform. For this reason, according to Aquinas, promising to do the impossible is not binding. This approach was later followed by the late scholastics in the 16th century. This school of thought worked on synthesizing the moral philosophy of Aquinas and Aristotle with Roman law. In this regard, the borrowed the conclusion that a contracting party is not bound to perform the impossible. However, the level provided an explanation for how to reconcile the Roman law with this maxim. In the 17th and 18th centuries, the members of Northern Natural Law School followed the late scholastics school. Samuel Pufendorf explained that nevertheless the seller is not responsible to do the impossible but he remains at fault for making the promise at the first place therefore the buyer has the privilege to recover any losses suffered by him in this regard. Although Samuel had achieved consistency but he sacrificed the Roman texts for it.

Later, the late scholastics admitted that it was not possible to reconcile the Domino with their moral philosophy primarily due to the fact that fault meant sin under the moral philosophy and theology. It is a deviation of the will from the law of God and thus, right reason. Molina and Lessius, two leading late scholastics, concluded that the jurists were not describing the natural law but the positive Roman law. The contracting party can only be held responsible for not exercising that you care under the natural law. These rules, according to Lessius, prevented iniquity and fraud and promoted diligence. Simultaneously, they discouraged litigation, according to Molina, and encouraged people to make contracts promoting human society and Commerce including loans for lease, deposit, another uses.

Therefore, a body of law in disarray transferred in inheritance to the 19th century jurists. The Roman law was very hard to explain in any case and the principled explanations of the natural lawyers failed to explain it as well. Although the textual problem in France changed due to the enactment of the Code but the solutions became more elusive. The Roman law was borrowed in part in England but was then confounded with another doctrine concerning implied conditions. The Roman law remained in force in Germany whereas the jurists forced the Roman text confirm to the principled explanations developed by them.

In the 20th century, it was claimed by Williston that impossibility was no excuse. Based on this claim, Williston concluded that the cases in the 19th century had made inroads in the principle. His conclusion was widely supported. Max Rheinstein explained that the principle follows the essence of assumpsit and therefore the cases that excused performance of contract due to an uncertain event have made exceptions to the principle. Both Williston and Max concluded that the judge Blackburn in the case of Taylor vs Caldwell excused the performance of contract to the owners of a music hall that was burnt down took the rule from the Civil law.

The modern search for solutions in this regard also follow the same pathway that a contracting party cannot be responsible to perform the impossible when it is not at fault in the ordinary meaning of the word. Recent example in this regard can be taken from the rule of Vienna Convention that explains that a party is not liable failing to perform any of the contractual obligations if it successfully proves that the impediment is beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the formation of the contract how to have overcome or avoided it or its circumstances. It gives rise to several questions such as that if impediment beyond the control of the contracting party means impediment that cannot be overcome by reasonable efforts, that if the failure to take this impediment into account at the time of the formation of the contract means that it could have been done by taking reasonable efforts, and that if the party is not liable if it is not at fault is explained by a principle that is explained by none of the legal systems that we have discussed previously.

However, as a matter of fact, we are dealing with the problem of rusty location independent of fault and not with a doctor and based on fault. Therefore, the German theorists who believed that the sphere of a risk must be calculated for each party tuition event belongs suggest the possibility of a solution. Although it is a good solution but it does not come without problems primarily due to the fact that speaking about this spheres of risks does not be helpful unless it can be explained that why there is has to be Borne by one particular party both sides of the contracting party. Richard Posner attempted such an explanation. Explain that a party must be the risk if it can foresee the uncertain event primarily by either preventing its occurrence or insuring against it. All these observations are helpful in other context but for explaining the doctrine of impossibility, they are not that good. For example, award has been declared and because of this war a shipment cannot be made. This is not an event that could have been foreseen at the time of the formation of the contract by either of the contracting party. Therefore, it is not that sort of any event for which the contracting parties can be readily by insurance. Moreover, the parties engaging in similar transactions do not provide an answer as well. It is a common day-to-day business for one party to repeatedly make shipments and the other party repeatedly receive the shipments. It only leaves one factor to discuss here, i.e., control. It explains the fact that the results of impossibility cases only related to the degree of control that could have been exercised by the claimant party.

Section 3: Essential Elements of the Claim of Changed Circumstances

Today, clauses concerning the changes in circumstances mandatory part of the contract between the parties particularly the contracts between state enterprises or government entities and private parties, governed by administrative law. Although, these clauses are supposed to be protecting the concession holders, in theory, they can operate in both directions which means that either the government or the private party can invoke them. The key point of this Doctrine is that a private contractor earns an indemnity from the government if he successfully establishes that the events were unforeseeable and exceptional and that they were capable of upsetting the economic balance of the contract.

Continuing further, change of circumstances in contract is a fancy term indicating that the performance of the contract is no longer possible buy one or both of the parties due to the fact that they are unable to keep their promises made in the origin of agreement result of the event that is beyond the control of the either party, i.e., it was unforeseeable. Although it does not indicate that the elements word missing and the clauses of the contract poorly written but it means that the terms of the contract did not contain every possibility of voidability. As an example, many people found themselves unable to pay for their mortgages in the time of economic hardship such as high unemployment and rising interest rates. These events were beyond the control of these people and therefore, it led many people to walk away from their homes. In this regard, the banks, instead of bailing on the obligation to pay mortgage, offered programs following the people to stay their homes paying the loan amount or the principal not including interest, insurance and taxes or either a royalty payment.

The homeowners and the banks make promises in the original mortgage. Typically, at a certain rate of interest, the banks promised to learn the money for a certain period of time. On the other side of the contract, the homeowners promise to pay a certain amount of money to the bank on monthly basis for the period of mortgage. However, during the period of economic hardship such as a higher level of unemployment and increased interest rate, the contract could no longer be performed. For this reason, the banks made changes to the original agreement between the parties and thus, allowed a different set of promises.

Section 3.1: Impossibility and Impracticality

Under the contract law, a court considers several specific instances reasonable for a change in circumstances. They include impossibility and impacticality, and frustration of purpose. There are two types of impossibility in the performance of a contract, i.e., objective impossibility and subjective impossibility. The former implies that if the terms of a contract become impossible to perform, a party can remove itself from the obligations if the non performance is not due to default of the breaching party where is the latter implies that a particular event or circumstance will make the promises of the contract impossible to perform.

Super Storm Sandy, in October 2012, created landfall. The storm destroyed, in her path, parts of New York City and its suburbs as well as much of the New Jersey Shore area. The people living in those areas went about their daily businesses prior to the storm. However, after the storm, all commerce and industry stopped through the region. Homes and businesses were leveled. Nothing was left. For the sake of an example, if a bride had her wedding on the day of the storm booked on the area of the New Jersey Shore in a catering hall that no longer exists, what the bride must do? As a matter of fact, it is clear on the face that the wedding can no longer be performed on that particular venue. In this regard, the court must look at the possibility for the catering hall to perform the promises of the original contract. The parties can breach the contract if the catering all no longer exists primarily due to the fact that the wedding reception cannot happen through no fault of either of the contracting parties.

It was an example of objective impossibility. Sometimes, the breach of a contract occur due to subjective impossibility. As pointed out earlier, it implies that a particular event or circumstance will make the promises of the contract impossible to perform. For the sake of an example, let's consider the possibility that the catering hall did not destroy in the super storm Sandy. However, the bride herself chooses note to continue with the wedding reception at a particular venue due to the fact that her friends and family members unable to travel to date venue due to airline cancellation. If the matter is taken to the court then the court might find the reason for speech two subjective on behalf of the bride herself primarily due to the fact that the captain hall is still able to perform the part of the contract. For this reason, the bride must care to make good on her promise to pay for the event despite the fact that if she moves on with the reception or not.

An alternative to this situation can arise in the form of impracticality. It means that the circumstance occurred and resulted in keeping the contract promises impossible or impractical. Therefore, in such a case the bride can claim impracticality. Under any circumstances, if any of the contracting parties claims that contractual terms are impractical for them then the court must look for three things. Firstly, the court must see that if an unexpected event has occurred after the contract had been formed between the parties. Secondly, the court must see that is the contracting parties had is used during the formation of the contract that an unexpected event would not happen. Lastly, the court must see that is the extent runtime of the unexpected event is of such a level that made it impractical or impossible photo contract in parties to move forward in the performance of their contract promises or contractual obligations. Based on these observations, example under consideration can be explained as that when the super storm Sandy hit the Northeast region of the country, the rain and wind continued for several hours. For this reason, major airports closed stations for the incoming flights. Simultaneously, due to serious flooding roads and highways became impassible. Therefore, half of the people residing in this side of the country return to find their homes that had been washed into the ocean. The curtain hall, even though, remained operable and intact, the surrounding areas had been devastated. At the same time, traveling to the region was impractical by automobiles and impossible by air. Therefore, the court might decide why looking at the circumstances that the contract had been made in practical due to the unexpected event of the super storm Sandy. It came as an act of God.

Section 3.2: Frustration of Purpose

Business ventures often miss the idea that the circumstances change. The commitments made by the businesses towards each other often come under stress due to a surprising turn in the market. For this reason, many commercial Enterprises and business owners struggle delivering their contract promises on time particularly after a demand dries up overnight, clients disappear or a business deal goes bust. The contact become impractical impossible to perform for this business owners and commercial Enterprises. The contract becomes not possible to deliver or no longer profitable under the original contemplated terms. Therefore, they may try to get out of a contract. Under such a situation, the businesses can claim frustration of purpose. The general rule of this claim is that the claimant is legally excused from performance of its obligations if he successfully establishes a valid claim of frustration of purpose. Simultaneously, The Other contracting parties who before what seeking relief for dead non performance will become unable to claim and collect relief or damages from that party. It indicates that the party claiming the frustration of purpose doesn't need to occupy a property or pay for it after signing lease, or the party does not need to shift the products it contracted to manufacture or deliver.

To successfully claim a valid frustration of purpose, the claimant party must show that the situation has occurred and that it has occurred without the fault or involvement of that party. Simultaneously, the claimant party must also show that the non-occurrence of that situation has been made a part of the contract under the basic assumption that it will not happen. Lastly, the claimant party must indicate that the language of the contract explaining the terms and conditions of the promises to be performed by both sides of contracting parties did not contemplate the event, and thus, had not assigned the risk of loss.

As a matter of fact, when the claimant party claims that it is unable to perform the contract promises due to frustration of purpose the court considered three important elements. First of all, a court considers that if the supervening event what's possible at the time of formation of contract or not. Secondly, a court considers that how the risk of occurrence of the event had been allocated between the contracting parties. Lastly, the court seeks the degree of hardship to the promises that has occurred due to the claim of frustration of purpose by the claimant party. The Jury remains responsible for making the findings about the fact that if the necessary elements all in evidence in a case or not primarily due to the fact that these metals are highly contextual. It means that the commercial agents must argue against or for frustration of purpose based on the facts.

An essential element in the claim of frustration of purpose is the foreseeability of the event. It is on the shoulder of the claimant party to prove that the event causing frustration of purpose was not reasonably foreseeable at the time of the formation of contract between the contracting parties. Moreover, it is not enough for the claimant to just expect that the event would not occur. This fact is brought forward primarily on the based of the fact that some events can reasonably be anticipated at the time of the contract such as severe weather, new legislation, change in price or a downturn in demand for a good or service. These kinds of events do not make valid grounds for frustration of purpose due to the fact that they are not really unforeseeable. However, an event to such as a political coup, negation of a large government contract, sudden cancellation of a message sporting event, the powerful earthquake or a war breaking out may comprise unforeseeable event. These events may result in negation of obligations of the claimant party under frustration of purpose. While being engaged in a commercial relationship, many parties under take risks. The party can have a poor stroke of luck. Therefore the fact that an unlikely event occurs forest turns out poorly for the party does not mean that the event was unforeseeable. For instance, if a student had leased a property after her student visa application was denied, he or she cannot avoid the obligations of the lease based on the fantasy could not enter the country to study. The reason behind it lies in the fact that the denial of the visa application reasonably foreseeable for the student at the time of formation of the lease agreement therefore the frustration of purpose claim fails.

The other essential element in claim of frustration of purpose is the allocation of risk. It is a critical element that if the parties at the time of entering into the contract allocated the risk for an event or a circumstance that made performance of the contract impractical or impossible for the contracting parties. Questions such as if the parties accounted for such things in their contract or if the parties anticipated this event happening can be asked in this regard. If the answer to such questions is in affirmation then the claimant party enjoys no grounds for a valid claim for frustration of purpose. Risk of loss, warranties and representations, indemnity provisions and other standard contractual clauses open anticipate and acknowledge a certain event that would otherwise be unforeseeable. For instance, an indemnitor cannot claim frustration of purpose in the event of a super Storm such as Sandy that wiped out the ship or trucks used for transportation of the goods if one party indemnifies the other for any harm or loss cost in transportation of goods. If such a clause were not made part of the contract at the first place, then the super storm Sandy destroying the trucks or ships of the seller would be unforeseen event. Such an event good excuse performance of the contract promise of the seller towards the buyer.

Section 4: Applications

An impossible performance gives rise to the question that why a party would enter into a contract that is impossible to perform. There are two possible arrangements. Firstly, an arrangement in which a party is held liable for non-performance of the contract although it is not at the fault. It explains that the non-performance of the party has occurred not due to the causes that the party could have controlled therefore it could not be held liable. The second amendment is that where a party is held liable performance of the contract regardless of the fact that if the party was at fault or not. This arrangement is simply another way of asking the question that if ability of the contracting party to perform the promise is a tacit condition of the contractual terms.

The modern courts have also given relief for hardship in performance of a contract instead of the non-performance itself. It indicates that the performance of the promise is not practically impossible to exist however it is physically more difficult to perform than the parties had imagined at the time of the formation of the contract. For example, in a case in California, the court excused the defendant from the performance of the contract on the basis of hardship. The defendant had agreed to take the gravel from the land of the plaintiff however he later found out that the cost of doing so much higher than the anticipated amount primarily due to the fact that the gravel was under the water and the parties what unknown of the fact at the time of the formation of the contract.

As pointed out earlier, business ventures often miss the idea that the circumstances change. The commitments made by the businesses towards each other often come under stress due to a surprising turn in the market. In most of the commercial contracts, market changes. It often results in the contract easier or more difficult to perform. Because these changes occur as part of the routine in the market, such changes do not call for relief. Nevertheless, the German courts have sometimes given relief in such situations. For instance, due to the First World War, the price of the coal increased. Therefore, earning revenues out of the fixed price contract was no more a possibility for the companies dealing in Iron wire or steam. A case was settled before appeal in the Westinghouse litigation. The corporation was involved in selling nuclear generators. It entered into a contract of selling uranium at a fixed price for a fixed term. Due to the world energy crisis, the price of Uranium soared and performance of the contract became impossible for the company; it might have resulted and bankruptcy for it. Because the case was settled before going into appeal therefore it cannot be argued that if a relief would have been given by an American Court or not.

Section 5: Conclusion

As discussed, the theory of change in circumstances evolved as the Roman law evolved. However, the doctrine of changed circumstances dealt by two major doctrines. Firstly, the doctrine of impossibility based on the Roman origin and secondly, the doctrine of clausula rebus sic stantibus based on the Canon law origin. The former resisted the efforts of the jurists trying to make a sense out of it for centuries. It explains that a party was not liable for performance of a contract simply because it found it difficult to perform. The latter, on the other hand of discussion, explained the problems confronted by the Roman law doctrine. Under the influence of the moral philosophy of Aristotle, a person or a party under the contract cannot be morally held responsible to do the impossible. It further explained the fact that the results of impossibility cases only related to the degree of control that could have been exercised by the claimant party. The applications of the doctrine change circumstances primarily revolve around impossible performance, hardship in the performance of a contract, and market changes.

List of Bibliography

Books

Clayton Gillette, Commercial Rationality and the Duty to Adjust Long-Term Contracts, 69 MINNESOTA LAW REVIEW 521 (Feb. 1985)

Conseil d’Etat, Compagnie générale d’éclairage de Bordeaux, Rec. 125, concl. Chardenet, 30 March 1916, quoted in M. Long, P. Weil et al., Les Grands Arrêts de la Jurisprudence Administrative (2003) at 188-89.

GRATIAN, DECRETUM dicta Gratiani ante D. 13 c. 1 in 1 CORPUS IURIS CANONICI (E. Friedberg, ed., 1876)

John Gotanda, Renegotiation and Adaptation Clauses in Investment Contracts, Revisited, Id. at 1461

Norbert Horn, Changes in Circumstances and the Revision of Contracts in Some European Laws and in International Law, p. 17 in ADAPTATION AND RENEGOTIATION OF CONTRACTS IN INTERNATIONAL TRADE AND FINANCE, ed. by Norbert Horn (Kluwer 1985)

REINHARD ZIMMERMANN, THE LAW OF OBLIGATIONS ROMAN FOUNDATIONS OF THE CIVILIAN TRADITION 687 (1990).

Cases

Aluminum Company of America (Alcoa) v EssexGroup, Inc., 499 F.Supp 53 (W.D. Pa. 1980)

Baetjer v. New England Alcohol Co., 319 Mass. 592, 602, 66 N.E.2d 798 (1946)

Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371, 375, 566 N.E.2d 603 (1991)

Gurwitz v. Mercantile/Image Press, Inc., 2006 WL 1646144, *2 (Mass.Super.2006)

Mineral Park Land v. Howard 156 P. 458 (Cal. 1916).

Mishara Constr. Co. v. Transit–Mixed Concrete Corp., 365 Mass. 122, 310 N.E.2d 363 (1974)

Translation from the award in ICSID Case No. ARB/01/8, CMS Gas Transmission Company v The Argentine Republic (May 12, 2005).

Journal Articles

Convention on the International Sale of Goods art. 79.

Joskow, Commercial Impossibility, the Uranium Market and the Westinghouse Case, 6 J. LEG. STUD. 119 (1977).

LEONARDUS LESSIUS, DE IUSTITIA ET IURE, CETERISQUE VIRTUTIBUS CARDINALIS LIBRI QUATUOR lib. 2, cap. 10, dub. 10 no. 70 (1628)

LUDOVICUS MOLINA, DE IUSTITIA ET IURE TRACTATUS disp. 271 no. 1 (1614)

MAx RHEINSTEIN, DIE STRUKTUR DES VERTRAGLICHEN SCHULDVERHALTNISSES IM ANGLO-AMERIKANISCHEM RECHT 162 (1932).

Richard A. PoSner & Andrew M. Rosenfield, Impossibility and Related Doctrines zn Contract Law: An Economic Analysis, 6 J. LEG. STUD. 83 (1977)

Robert A. Hillman, Court Adjustment of Long-Term Contracts: An Analysis under Modern Contract Law, 1987 DUKE LAW JOURNAL 1

SAMUEL WILLISTON, THE LAW OF CONTRACT § 1931 (1920).

THOMASQUINAS, SUMMA THEOLOGIAE I-II q. 13 a. 5 ad 1.

Subject: Law and International Law

Pages: 20 Words: 6000

Read

The Title Will Depend On The Writer, When He Or She Choose From The Topic Ideas On The Doc That I Will Download On The Attachment .

Freedom of Speech

[Name of the Writer]

[Name of the Institution]

Freedom of Speech; the Right/Obligation to Criticize the Government and Its Right/Prohibition to Criticize the 4th Estate

Introduction

From the time of its consideration in Article 19 of the Universal Declaration of Human Rights, the right to express emotions freely and voicing for rights with freedom has been secured in most of the significant worldwide human rights arrangements. In universal law, the opportunity to express suppositions and thoughts is viewed as a basic at both individual dimensions, to the extent that it adds to the full advancement of an individual and being an establishment stone of vote-based society (Mitchell, 2016). Free discourse is an important precondition to the pleasure in different rights, for example, the privilege to cast a ballot, free get together and opportunity of affiliation, and is basic to guarantee press opportunity. This simple word is as much important as it gets because each and every single person deserves to live freely without facing any sort of discrimination or racism and this is where the international laws of freedom of speech are applied to make sure that there is no course of discrimination.

Discussion

The first amendment of the Constitution of the United States of America saves the right to have freedom of speech and expression, several public compositions, state and administrative decrees. The highest court of the United States of America, for example, the Supreme Court has supposed some types of speeches and articulation that are given minor or little to less assurance by the First Amendment and has perceived that administrations may establish sensible time, or way of confinements on freedom of speech and on any act that relates to freedom (Epstein, Parker, & Segal, 2018). Many rules and regulations may confine individuals and many businesses from expression and communicate freely with others, for example, many businessmen make it a rule to assure that their employees do not share their salary packages and pay scale with other individuals or indulge in any kind of trade.

The provided article of first amendment does not give the basic need of free speech yet additionally guarantees the pleasure to get data, rejects most administration limitations or masses that separate between speakers, confines the offense responsibility of people for convincing them with freedom of speech, and retains the legislature from requiring people and organizations to dialog or fund particular kinds of discourse with which they do not concur. With regards to federalism, during the period of the 1780s, chitchat over the determination of another statute realized a partition between Federalists, for instance, Alexander Hamilton who bolstered a strong focal government, and Anti-Federalists on the other hand where the likes of Thomas Jefferson and Patrick Henry who upheld a flimsier national government (Mitchell, 2016). In the midst of and after the Constitution endorses development, Anti-Federalists and state legislative bodies imparted stress that the new Constitution set an exorbitant measure of emphasis on the power of the legislature.

The conscripting and unavoidable determination of the Bill of Rights, which included the First Amendment, was a delayed consequence of these reservations, as the Bill of Rights confined the strength of the state administration. In 1798, Congress, which contained a few of the ratifiers of the First Amendment at the time, incorporated the infamous Alien and Sedition Acts. These laws precluded the distribution of "false, shocking, and noxious works contrary to the administration of the United States of America, or the President of the United States. Its goal was to criticize as well as on the other hand to bring them into disdain or unsavoriness; or to energize against them disdain of the great individuals of the United States, or to work up dissidence inside the United States, or to energize any unlawful mixes in that, for restricting or opposing any law of the United States, or any demonstration made by the United States president. The law allowed truth as a safeguard and required confirmation of the malignant plan. The 1798 Act all things considered made ascertainment of the plan of the designers with respect to the First Amendment troublesome, as a portion of the individuals from Congress that upheld the appropriation of the First Amendment additionally cast a ballot to embrace the 1798 Act. The Alien and Sedition Acts were a noteworthy political issue in the 1800 decision, and after his election as the president of United States of America, Thomas Jefferson absolved the individuals who had been sentenced under the Act (Baum & Devins, 2017). The Act lapsed, and the Supreme Court never governed on its law.

Between the time period of 1800s-1900s, different laws confined discourse in manners that are today not permitted, for the most part, because of the impact of Christianity. A few laws were persuaded not by profound quality, however, worries over national security. The Office of Censorship smothered correspondence of data of military significance amid World War II, including by writers and all correspondence going into or out of the United States. From the 1940s to the 1950s, McCarthyism brought about the concealment of the backing of Communism, and the boycott of Hollywood. This incorporated a few indictments under the Smith Act of 1940.

New York Times v. Sullivan

A front-page commercial was printed by the famous newspaper agency known as the New York Times which was backed by some protestors and civil right protestors. The commercial visibly scrutinized the police offices of the city of Montgomery in the state of Alabama for its handling of protestors who were protesting for civil rights. A large portion of the portrayals in the ad was correct and to the point, yet a portion of that particular ad was incorrect (New York Times Co. v. Sullivan, 376 U.S. 254 1964, 2019). This advertisement along with the New York Times was sued by then police commissioner Sullivan. The court of Alabama ruled in favor of Sullivan, finding that the paper advertisement was dishonest and represented a false image of police of Alabama and the police chief Sullivan. Following to losing an intrigue in the Supreme Court of Alabama, the newspaper agency took the case to the highest court of the nation and made it clear that the advertisement was not meant for the police department or for officer Sullivan and that the freedom of speech and expression of the news agency is protected under the first amendment.

The Supreme Court of the United States of America consistently decided in favor of the paper, unanimously. The Court said the privilege to distribute all kinds of information and declarations are safeguarded by the Constitution’s First Amendment. Supreme Court likewise said that if someone has to prove anything related to hate speech then a proper measure of proof needs to provided first before the case can be heard (Orentlicher, 2016).

The constitution of the United States and the first amendment states that Congress will not in any circumstance make such rules that will defy the basic concept of freedom of speech. It is anything but difficult to erroneously decipher the First Amendment as allowing individuals the privilege to state anything they desire, at whatever point, and wherever they need. Nonetheless, the American Supreme Court has deciphered that the First Amendment was never proposed to give such power since it does not ensure discourse consistently and in all spots (New York Times Co. v. Sullivan | law case, 2019). The Court has reliably decided that the administration has the ability as far as possible to put sanctions on free speech whenever it deems necessary.

In this case, the job was complex due to the Court's powers of the review being restricted by the principles of federalism. The United States Supreme Court could not just validate that Alabama had misused its own functional law. It was necessary to show that its misuse dishonored a certain rule of federal constitutional law. So, in order to save the Times, it was essential to constitutionalize a certain part of the common law of defamation. So far, there is decent wisdom in that attempt, for one serious purpose of any constitution is to deliver protection and defense in the time of calamity, even those hastened by common law settlement.

On a common dimension, unrestricted speech inspires the lion's share rule. It is through conversation only we support agreement and structure a group. Notwithstanding whether the proper reactions we reach are shrewd or ridiculous, free speech inspires us to promise that the suitable replies often fulfill with what a common person thinks and speaks off. Additionally, as Americans, have faith in unrestricted markets. It can be said, the greatest trial of shrewd political strategy is the capacity to pick up acknowledgment at the time of election (New York Times Co. v. Sullivan, 2019). On a personal dimension, free speech can be a relation to a simple technique of collaboration, the means through which citizens banter the issues of the present day, go to the polling stations, and take part in many different governmental issues which shape the structure of the American political system. The freedom to express and speak provides the person to take part in governmental issues and voice for his or her rights and case votes so that a better understanding can be confirmed.

Right to Speak Freely

The privilege to talk openly is in like manner a major supporter of the American trust in government confined by a course of action of adjusted administration, filling in as a constraint on mistreatment, degradation, and incompetence. The association among vote based and a larger part rule government and talk undeniably give some illumination to the American worship of free talk, yet not an absolutely satisfying or complete one (Orentlicher, 2016). For there are many flourishing vote-put together frameworks with respect to the planet, yet few of them have gotten as either the secured law or the social traditions that help free talk as expansively as America does. Likewise, a noteworthy piece of the enormous security we provide for verbalization in America seems to persevere through no prominent relationship with legislative issues or the equitable strategies that are done by the administration in any way shape or form.

The relationship of the privilege to talk unreservedly to self-organization and the interest of the business focus of contemplations representation still, in any case, don't uncover to everything. The privilege to talk unreservedly is associated not just to such narcissistic completes as the organization of the greater part administers framework or the search for reality. The privilege to talk uninhibitedly has a motivating force on a dynamically up close and personal and individual measurement. The privilege to talk uninhibitedly is a bit of the human character itself, regard by and by lacing with human self-administration and pride. Various Americans handle the privilege to talk unreservedly for comparative reasons they handle various pieces of freedom (Warren, 2018).

The privilege to talk uninhibitedly is the benefit to disobediently, capably and pointlessly talk one's psyche since it is one's very own cerebrum and musings. The privilege to talk uninhibitedly is thus fortified in excellent and uncommon ways to deal with the human capacity to think, imagine and brand. All things considered, little voice and perception are the blessed locales of mind and soul. The privilege to talk unreservedly is by and by associated with the chance of thought, to that central capacity to reason and consider, trust and trust, that, all things considered, portrays our mankind (Brown, 2017). If these various segments of our lifestyle do in blend give some information into why the privilege to talk unreservedly applies such a telling closeness on the American real and social scene. They don't utilize any methods almost clarify the outrageous and clearly interminable legitimate and social dialogs over the limits on the chance of discourse. As the authority of the first amendment of the United States Constitution is supreme, the right to speak freely is not a flat-out right thing to be executed. Certain confinements and limitations apply.

Clashes including the opportunity of articulation are among the most troublesome ones that courts are approached to determine. This progressing procedure is regularly combative and nobody basic legitimate recipe or philosophical rule has yet been found that is up to the trap of making the activity simple. Americans thusly continue bantering in political exchanges and arraign in courts such issues as the impact of society to control antagonistic talk to verify kids, the likelihood of disallowing talk that defeats affirmation of secured development, the propriety of checking talk to shield singular reputation and insurance, the benefit to restrain political duties and utilization to diminish the effect of money on the political methodology, and interminable other free-talk conflicts (Brown, 2017). Cases identifying with free discourse from time to time incorporate a contention of real characteristics. Courts must alter the prerequisite for agreement and solicitation against the fundamental perfect to express one's perspective.

The opportunity of the press ties down the benefit to get and circulate information or ends without government oversight or fear of disciplinary activities. Oversight happens when the governing body examines disseminations and arrangements and limits the usage of material it finds unfriendly. The chance of the press applies to a wide scope of printed and convey material, including books, papers, radio, diaries, handouts, films productions and TV programs. The Constitution's arrangers outfitted the press with a wide chance. This chance of opportunity was seen as imperative to the establishment of a strong, free press from time to time called "the fourth branch" of the assembly (Hueglin and Fenna, 2015). A free press can give occupants a combination of information and conclusions on issues of open noteworthiness. In any case, the chance of press once in a while collides with various rights, for instance, a disputant's privilege to a sensible fundamental or an occupant's qualification to insurance.

In the United States, the organization may not foresee the generation of a paper, despite when there is an inspiration to believe that it will reveal information that will endanger the touchy issue of national security.

Pass such a law that will force the media and the newspaper industry to distribute data with no consent.

Force duties on the press and print media that it does not require from other different organizations.

Constrain writers to uncover, much of the time, the personalities of their sources.

In general, this store of rights, as it were, made by the Supreme Court of the United States of America decisions, portrays the "chance of the press" guaranteed by the First Amendment. What it implies by the chance of the press is, honestly, a creating thought (Hueglin and Fenna, 2015). It is a thought that is taught by the impression of the people who made the press stipulation in a period of pamphlets, fanatic tracts, and periodical papers, and by the points of view on Supreme Court makes a decision about who have deciphered that announcement over the span of ongoing many years in a vast expanse of step by step papers, books, magazines, films, radio and transmissions, and now Web districts and Internet postings.

Sullivan and cases that sought after moreover hold that the First Amendment guarantees the generation of false information about issues of open stress in a variety of settings, disregarding the way that with stunningly less life than it completes a dissipating of the real world (Bradley et al., 2018). In light of current circumstances, open experts and open figures may not recover normal damages for harm to their reputations aside from in the event that they were the setbacks of a rash rejection for truth in the dispersal of a "decided falsehood." By a similar mark, the Supreme Court has been significantly less conclusive in articulating the level of First Amendment security to be managed against restrictions on the opportunity of the press that is backhanded and more inconspicuous than the issuance of an earlier limitation or the inconvenience of criminal or common authorizations ensuing to distribution. Hence, for instance, in its 1978 choice Zurcher v. Stanford Daily, the Court made its decision that the First Amendment does not shield the press and its broadcasting studio from the issuance of legitimate court orders (Bradley et al., 2018). Also, the Supreme Court has held that the First Amendment manages the press and open positive privileges of access to probably some administration procedures. In a progression of choices starting with 1980's Richmond Newspapers, Inc. v. Virginia, the Court set up that the First Amendment not just shields the press from earlier restrictions and other government-forced punishments, yet additionally contributes the press and open with a privilege to go to criminal preliminaries and other legal procedures.

From this history of different decisions made and taken by the Supreme Court, it is evident that how simple yet sensitive this issue of free speech has become. At present times, this issue is something everyone is voicing for, but no one is able or strong enough to take big steps for this issue. The media and government have always been bitter enemies and the present administration under Trump presidentship has already seen a fair share of its encounters with the press. Many reporters and journalists are banned from entering many public and official buildings just so they cannot ask some questions that might hurt the reputation of governmental officials (Baum & Devins, 2017). The press cannot carry out its responsibility in the event that it is not genuinely free and autonomous, nor can a majority rule government be known as a vote-based system on the off chance that it does not enable the press to work. Without a doubt, the Court has rejected disputes advanced by the institutional press that, because of its fundamental occupation in ensuring the free movement of information in a larger part rule society, it ought to acknowledge remarkable securities from by and large all around material laws that limit its ability to collect and express the news. Along these lines, in Cohen v. Cowles Media Co in 1991, the Court satisfactorily wrapped up the treatise on the chance of the press it began in Sullivan, it did in that capacity when it underscored that the press is properly subject to chance under the "all things considered pertinent" law of understandings when it breaks a certification to keep a source's character mystery, despite when it does thusly in order to report legitimate information about the source's relationship in a matter of open concern. As indicated by Cohen, even the discourse that is very secured by the main change is at risk to limitation dependent on its substance subsequent to going through severe inspection. On the off chance that the administration understands that the limitation is significant in order to serve in advancing a convincing interest, at that point, it has the privilege to do as such (Banks & Blakeman, 2018).

Conclusion

Free speech and expression are a crucial human right that must be maintained in law based social orders. However, there is a stressing worldwide pattern of governments outlandishly constraining the right to speak freely, focusing on columnists, dissidents and different people viewed as contradicting from what government sees. Indeed, even in western popular governments, laws are diminishing dissent exercises and compromising press opportunity and free discourse through compulsory metadata maintenance plans. It is basic that common social orders over the globe are careful in safeguarding opportunity of articulation. This is essential for the improvement of individuals' lives and the creation and support of solid, wellbeing law based social orders. Despite the fact that the idea of the right to speak freely is more maintained in the United States than in numerous different nations, the laws of the government state still show numerous confinements to the basic concept of freedom speech and expression. A few sorts of articulation or discourse are considered as unsafe to singular interests for example defamation and slander are essentially managed because of their risk of the activity.

References

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). (2019). Justia Law. Retrieved 15 May 2019, from https://supreme.justia.com/cases/federal/us/376/254/

New York Times Co. v. Sullivan | law case. (2019). Encyclopedia Britannica. Retrieved 15 May 2019, from https://www.britannica.com/event/New-York-Times-Co-v-Sullivan

New York Times Co. v. Sullivan. (2019). LII / Legal Information Institute. Retrieved 15 May 2019, from https://www.law.cornell.edu/supremecourt/text/376/254

Epstein, L., Parker, C. M., & Segal, J. A. (2018). Do Justices Defend the Speech They Hate? An Analysis of In-Group Bias on the US Supreme Court. Journal of Law and Courts, 6(2), 237-262.

Mitchell, D. (2016). The liberalization of free speech: Or, how to protest in public space is silenced. Spaces of Contention: Spatialities and Social Movements, 47.

Orentlicher, D. (2016). Off-Label Marketing, the First Amendment, and Federalism. Wash. UJL & Pol'y, 50, 89.

Warren, S. R. (2018). Over-Due Process: Selective Incorporation, Federalism, and the Warren Court. The Owl, 8(1).

Brown, K. E. (2017). Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent.

Hueglin, T. O., & Fenna, A. (2015). Comparative federalism: A systematic inquiry. University of Toronto Press.

Bradley, A. S., Goldsmith, J. L., Miller, Z. V., Kirgis, F. L., Falk, R. A., Higgins, R. C., ... & Bekker, P. H. (2018). American Journal of International Law.

Baum, L., & Devins, N. (2017). Federalist Court: How the Federalist Society Became the De Facto Selector of Republican Supreme Court Justices. Slate (January 31, 2017).

Banks, C. P., & Blakeman, J. C. (2018). The US Supreme Court, new federalism, and public policy. In Controversies in American Federalism and Public Policy (pp. 1-17). Routledge.

Subject: Law and International Law

Pages: 10 Words: 3000

Read

Theoretical

SVRo 84bjbj 7LzfzfD rrr8Dr TTTf h h h h h h IL TTTTT 4 TR f Tf GrRR 0 ZTTTTTTT 4HTTT TTTTTTTTTTTTT X RUNNING HEAD LAW AND INTERNATIONAL LAW

Theoretical Essay

Name of the writer

Name of the institution

Introduction

People commit activities that sometimes affect and influence others lives and when people commit unlawful activities, authorities try to punish them as they usually go against the law. Authorities and the departments that deal with criminal justice make policies for restricting individuals liberty for committing a crime. Unlawful acts and activities are discouraged in all society. Every society is trying to formulate the policies and the procedures that would facilitate the investigation. Crimes are classified based on their seriousness. Though in the past, most of the crimes used to be committed by men (rape, sexual assault, violent crimes) but with time, there has been witnessed an increase in the crimes being committed by females. Different theories have been proposed by different scholars and researchers (Egan, et al, 2019, pp. 169-178). One of the central theories in criminology is Feminist Criminology that emphasizes that social roles being played by women in the society are different from that of the men. Different roles being assigned to females lead them to pathways towards victimization, crime and deviances that were overlooked in other theories of criminology. Feminist criminology claims that female offenders are getting increased because of the way they are treated by their families and society (Walklate, et al, 2019, pp.60-77). It also claims that when things get out of their (females) they get out of the threshold crossing all their limits and break the laws thinking them useless as they could not protect their right.

Discussion

Most of the research used to be based on male criminality and most of the responses of criminal justice systems used to be based on male offenders. Feminist criminology claims that most of the crimes that women commit are because of the inequality they face in life. Feminist criminology place gender at the centre of the discourse and also tries to bring womens point of view of understanding the world that leads them towards crimes and responses to crime. This criminal theory also proposes an argument that provides pieces of evidence for the cause of the crime being committed by the females (Desmond Dawes, et al, 2019, pp.1-24). Analysis of this feminist criminology theory shows that crime is most related to gender related issues as women are treated unequally so they commit crimes to claim their rights. Undoubtedly, it is wrong to commit a crime for the sake of justice. Most of the blame of female criminality is being the shoulder to society and males who exploit them and forced them to be indulged in criminal activities i.e. usually those females commit crimes who are being sexually assaulted in the childhood or being physically tortured by men. In some of the cases, women commit a crime for the sake of revenge from this male dominant society.

Causes of crimes being committed by females are different than the causes that drag males to any crime. The subjugation of women, masculinization, lack of opportunity, marginalization, male criminal behaviour and chivalry are the main causes that push females towards crimes in the third world countries. According to feminist criminology, different socialization processes that trigger that social difference between males and females also serve as the main causes because of which females commit crimes. Feminist criminology also argues that major causes of female crime involve poorly paid employments, unemployment and inadequate welfare payments (Sutherland, et al, 2019). Another aspect that has been highlighted in this theory is that women commit a crime for their economic needs and early childhood experience of womens sexual and physical torture. Feminist criminology not only sheds a light on the causes of female crime but also suggests solutions to best combat these causes. Equality and justice for women must be promoted. Equal opportunities must be provided to the women so that they could fulfil their economic needs. There is a need to formulate and implement more laws that would protect and keep children safe from early childhood sexual torture. Increasing the number of opportunities would help in lowering the number of female crimes. For example, according to Rita J. Simon, when women are provided with equal opportunities, they become able to fulfil their social needs.

Like every country, Australia criminal justice system is also influenced by feminist criminology theory and undoubtedly all the authorities and departments of CJS i.e. social, courts and policies makers are greatly influenced by the feminist criminology. Female criminals are being given relaxation as feminist criminology theory explains factors that sometimes look logical and valid. Sentences attitude towards women in the criminal justice system could be observed as an important factor (Frazer, et al, 2019). According to Butler and Allnut, courts that sentence punishments to the female prisoners keep in consideration those female prisoners which have a higher prevalence of psychiatric issue than males. 90 of the female prisoners experienced mental disorder before the incarceration as compared to the 785 male prisoners. Feminist jurisprudence consists of a judicial system that does not consider women being subjugated rather courts and policymakers respond to the females need. Though this theory provides strong evidence for treating women, offenders and prisoners better than male offenders but increases in the female criminality is another factor that the criminal justice system of Australia is focusing on. The criminal justice system has prohibited the searching of female offenders by the male police officers. Also, female officers are being staffed so that female criminals could be given a feeling of security. In the light of feminist criminology, certain changes have been made in police, policies and court treatment (Pakes, et al, 2019). Feminist theory claims that on contact with criminal courts, women likely commit fewer crimes. Involvement of women in crimes is non-violent and non-serious so they must be treated differently than male offenders and lastly the policy trends on the arrests, court patterns indigenous and non-indigenous women depicts that indigenous women are over-represented as compared to the non-indigenous women.

Taking into consideration the present criminal justice system of Australia and Feminist criminology theory, it could be said that there are certain aspects of this theory that are out-dated. Unemployment is one of the aspects that increased the rate of female criminals, this aspect was valid as it looked upon 30 years back but at present, women are getting almost equal employment opportunities. Another aspect of this theory that could be viewed as irrelevant in the present society is that women are not subjugated as they used to be in the past as now feminism has changed many things in present days (Kendall, et al, 2019). Keeping in consideration the success of the feminism and other movements that were started for providing women with equal rights and opportunities, it wont be wrong to say that nowadays women are not only being given equal opportunities but they are also giving a tough competition to men. One of the most out-dated aspects of this theory is that women are oppressed, thats why they are getting involved in more crimes. There is a need to look at the present-day circumstances that show increased participation of young women in sub-cultural activities like influence of gangs and drugs are making young girls more violent. Females at present are involving more in cyber-crimes so there is a need to see the interplay of social, behavioural and cultural policy responses as per the present circumstances.

Conclusion

A critical evaluation of the selected theory, the Feminist criminology theory shows that there are certain causes that have increased the crimes committed by females. There is no doubt that females are engaging more in crimes as they are being more victimized by their society or sometimes family, but at the same time, it wont be wrong to say that this claim seems to be accurate that criminology theories need to be reviewed as they are quite out-dated or too narrow for their implementation in the contemporary Australian society. Critics who criticize these criminal theories are right as there are several aspects of this theory (Feminist criminology theory) that are lacking the things and factors that need to be changed as per the present time. Veritably, criminology theories were made years before when women were not treated the way they are being treated today. In the past, no doubt they were oppressed and exploited for different purposes but taking a look at the present, there could be seen a shift in the ways how women are treated generally (Whiteley, et al, 2012). It could be witnessed that there are various movements and organizations that are working for women and their rights, so the condition of women is much better than the past. Women are being given equal opportunities in almost all the fields and also, they are being offered equal employment chances. In some countries, there are fields where women are getting more jobs and protection than males so as a whole it could be said that criminology theories need to be upgraded and modified as per the present circumstances. It could be promulgated that there are certain aspects of feminist criminology theory that need to be overviewed within present constraints. Policymakers in Australia need to take this issue under consideration and form some steps to improve the credibility of the criminal theories as per the present circumstances.

References

Desmond Dawes, G. and Davidson, A., 2019. A framework for developing justice reinvestment plans for crime prevention and offender rehabilitation in Australias remote indigenous communities.Journal of Offender Rehabilitation, pp.1-24.

Egan, S., 2019, May. Excavating feminist knowledge and practices in the field of sexual assault service provision An Australian case study. InWomens Studies International Forum(Vol. 74, pp. 169-178). Pergamon.

Frazer, E. and Hutchings, K., 2019. The feminist politics of naming violence.Feminist Theory, p.1464700119859759.

Kendall, S., Lighton, S., Sherwood, J., Baldry, E. and Sullivan, E., 2019. Holistic Conceptualizations of Health by Incarcerated Aboriginal Women in New South Wales, Australia.Qualitative health research, p.1049732319846162.

Pakes, F., 2019.Comparative criminal justice. Routledge.

Sutherland, G., Easteal, P., Holland, K. and Vaughan, C., 2019. Mediated representations of violence against women in the mainstream news in Australia.BMC public health,19(1), p.502.

Walklate, S., McCulloch, J., Fitz-Gibbon, K. and Maher, J., 2019. Criminology, gender and security in the Australian context Making womens lives matter.Theoretical Criminology,23(1), pp.60-77.

Whiteley, K.M., 2012.Women as victims and offenders incarcerated for murder in the Australian criminal justice system(Doctoral dissertation, Queensland University of Technology).

LAW AND INTERNATIONAL LAW

PAGE MERGEFORMAT 2

(),-./0167CDEZtuvwxyz ocoocooococoohUCJOJQJaJhTjhsLCJOJQJaJhTjhsL56CJOJQJaJhhx5CJOJQJaJhhCJOJQJaJhCqCJOJQJaJhhxCJOJQJaJhjh CJOJQJaJhjhxCJOJQJaJhgRmCJOJQJaJhCJOJQJaJ),-./01DZtuvwxy dagdsLdagdmp dagd7dgdmpdgd mp

(vZ6hTjhCqBCJOJQJaJfHphq hTjhsL56CJOJQJaJ6h

hsLBCJOJQJaJfHphq 0hsLBCJOJQJaJfHphq 6hTjhsLBCJOJQJaJfHphq hsLCJOJQJaJhTjhsLCJOJQJaJh CJOJQJaJ.0GHMO ikrpphxCJOJQJaJhTjhCqCJOJQJaJ0hsLBCJOJQJaJfHphq 6hTjhsLBCJOJQJaJfHphq hsLCJOJQJaJh CJOJQJaJhTjhsLCJOJQJaJ0hCqBCJOJQJaJfHphq ,I 0JUXNR)KLMN0hsLBCJOJQJaJfHphq 6hTjhsLBCJOJQJaJfHphq hsLCJOJQJaJhwCJOJQJaJhTjhsLCJOJQJaJhxCJOJQJaJ0.k.W/-0011u2333333333dgd mp dagdsL0d0agdsL0d0agdsL dagdsL(x(((((((((()))KOST

hikx__0hsLBCJOJQJaJfHphq 6hTjhsLBCJOJQJaJfHphq hsLCJOJQJaJhtCJOJQJaJh

CJOJQJaJhdQCJOJQJaJhwCJOJQJaJhTjhsL56CJOJQJaJhTjhxCJOJQJaJhTjhsLCJOJQJaJkl,,N,W,,i,o,,,,---------- ....._..k.//L/W// 00-00001Q1l111111zzzzzhTjhsL6BCJOJQJaJfHphq 6hTjhsLBCJOJQJaJfHphq hCqhsL5CJOJQJaJhTjhgRmCJOJQJaJhTjhCqCJOJQJaJhTjhsLCJOJQJaJhtCJOJQJaJ012T2e2g2i2u2333)333P3333333333333333334444wdjhh2CJOJQJUaJhjhgRmCJOJQJaJhgRmCJOJQJaJh8jh8Uhjh0CJOJQJaJh3CJOJQJaJhsLCJOJQJaJhTjhsL6BCJOJQJaJfHphq 6hTjhsLBCJOJQJaJfHphq 3333454647484dgd mpgdagdxdgdgRmmp41424344454647484hjh0CJOJQJaJh8h2hJCJOJQJaJmHnHujhh2CJOJQJUaJhh2CJOJQJaJ5 01hpj/ y666666666vvvvvvvvv6666666666666666666666666666666666666666666666666666666hH6666666666666666666666666666666666666666666666666666666666666666662 0@Pp2( 0@Pp 0@Pp 0@Pp 0@Pp 0@Pp 0@Pp8XV 0@ 0@ 0@ 0@ 0@ 0@ 0@ 0@ 0@ 0@ 0@ 0@ 0@ 0@666666 OJPJQJ_HmH nH sH tH JJNormaldCJ_HaJmH sH tH x Heading 1@5CJ KH OJPJQJJaJ ZZx Heading 3@5CJOJPJQJJaJDA DDefault Paragraph FontRiR0Table Normal4 l4a(k (

0No List4@4xHeader

4 4xFooter

R/RxHeader CharCJOJPJQJ_HaJmH sH tH V/VxHeading 1 Char5CJ KH OJPJQJJaJ R/1RxHeading 3 Char5CJOJPJQJJaJV VxpTOC Heading@ BCJKHaJph6_

ipTOC 1

dhmpFF

ipTOC 3

dhmp6U q6x0 HyperlinkBphDD

0Normal (Web)CJOJQJaJPKContent_Types.xmlN0EH-J@ULTB l,3rJBG7OVa(7IRpgLr85vuQ8CX6NJCFB..YTe55 _g -Yl6NPK6_rels/.relsj0Qv/C/(hO Chvxp_P1H0ORBdJE4bq_6LR70O,En7Lib/SePKkytheme/theme/themeManager.xmlM @w7c(EbCA7K

e.,H,lxIsQ ,jGW)E 8PKtheme/theme/theme1.xmlYKo7Xd7GJK.eG9R@ZP

z1MDi siLaI/N, IQ XwB

2ZCXFKqKJWD 0TcKBcqYT(NmONIkwLWfxAiRvr@2SNque_F78TkPvEA67meiW

(IKR6u7n@A4D3RIiGhQB8HA(aKniOEE0KK9gZ76z/L_zS.Lq__phhC_MbJ@ R8wddmjcp/IDg6wZ0sDwr,qlEyDQQ,c8B,gxMDM./SAeQFSDbjE7CbNpr8fnFrI.1fV21(tkJV1/ QL07fVIhcMZ6/H bWGvTsBCtLQJxyJ C (tRQe1/-/A_Y)6(p_Nnjzb-nVb.7pMMMMud9c47iV7df5j

z9JrJ3Ax FU9i3Q/B)LRPx)04N OagYeHjkblChPWalfpX OAXlXVZbr

Zy4Sw3WhPxzSqyu,.in6 mgV/C,jSAh4@3Sm

CcBs

rHDuALqW@C48v2Pn7VKYpVlE7AUeexwPx ,oteU3gpsq530BUMZ4Ube9i5j,zE5714g1nsBW 0xnGDA0Y4rl@2E5,bhWjKm68.wB.GtO

-/PK

theme/theme/_rels/themeManager.xml.relsM 0woo5

,.aic21hqm@RNdo7gK(MR(.1rJT8VAHubP8g/QAs(LPK-Content_Types.xmlPK-60_rels/.relsPK-kytheme/theme/themeManager.xmlPK-theme/theme/theme1.xmlPK-

theme/theme/_rels/themeManager.xml.relsPK xml version1.0 encodingUTF-8 standaloneyes

aclrMap xmlnsahttp//schemas.openxmlformats.org/drawingml/2006/main bg1lt1 tx1dk1 bg2lt2 tx2dk2 accent1accent1 accent2accent2 accent3accent3 accent4accent4 accent5accent5 accent6accent6 hlinkhlink folHlinkfolHlink/8,L CCCCCFk1484384 @F@ @H 0( 0( B S 6,9,6,9,3 KOSThiklNNWio ,6,9, KOSThiklNNWio ,6,9,eii-ke1ilx2J5AtjAtJRKetvetfbkketAtQxt0w7. m(h,b-003w6(@CPEHanJKLcMNlPPdQVtTviqy_hJkgRmCqOtUvw0xxVsLx Mt

xYTu )XLk

(lRgZkw d)QUh5A8XTedzxrsxXw3o9627Jy1jI_H-

)8I)Z@8,(@UnknownG.x Times New Roman5Symbol3..x Arial7.. Calibri7BCambriaC.,. Calibri LightABCambria MathqhyVy-dOdOn243QHP PgZ2xx8muhammadtehreemPF Oh0l (4

@LTdmuhammadtehreemNormalPF7Microsoft Office Word@NSI@@r@rd .,0hp

OTitle

(),-.0123456789@ACDEFGHIKLMNOPQTUXRoot Entry FLrW@Data 1Table/WordDocument 7LSummaryInformation(BDocumentSummaryInformation8JMsoDataStorerGr5O4BUKWSWORCNXQ2rGrItem PropertiesUCompObjr xml version1.0 encodingUTF-8 standalonenobSources SelectedStyleAPA.XSL StyleNameAPA xmlnsbhttp//schemas.openxmlformats.org/officeDocument/2006/bibliography xmlnshttp//schemas.openxmlformats.org/officeDocument/2006/bibliography/bSourcesxml version1.0 encodingUTF-8 standaloneno

dsdatastoreItem dsitemID3AE8387F-A8D7-4205-96C9-258E44235785 xmlnsdshttp//schemas.openxmlformats.org/officeDocument/2006/customXmldsschemaRefsdsschemaRef dsurihttp//schemas.openxmlformats.org/officeDocument/2006/bibliography//dsschemaRefs/dsdatastoreItem F Microsoft Word 97-2003 Document MSWordDocWord.Document.89q

Subject: Law and International Law

Pages: 5 Words: 1500

Read

Theories Of Law

Theories of Law

Name

Affiliation

Date

Theories of Law

Antigone is one of the most famous tragic plays by the Greek author Sophocles. The play is tragic in the way that the author has presented the dilemma of an ancient society of Thebes facing the conflict of preferring positive law over the natural law. The particular preference of positive law by the ruler brings the devastation on him, in the form of losing his family. The debate of preferring the positive law over natural law is also one of the most discussed issues in the field of philosophy. Most of the philosophers, including the name of Thomas Aquinas, have dedicated their lives explaining the role and importance of both types of laws in the life of human beings. The natural laws of the society are those which are set by nature and going against them brings the destruction of humanity. On the other hand, nature has not defined all the laws of the society, due to which the human beings felt the need of setting their own rules and laws for their distinct societies, which are called as the positive laws. The main conflict shared in the tragic play Antigone by Sophocles is that of following the positive law or the natural law. The play is concerned with obedience or disobedience to law to a great extent as it is the main theme of the play, in addition to being the basic source of the tragedy described in it. Following the laws of nature, while neglecting the laws of the human beings may have been the point of disobedience in Sophocles’ play Antigone has been argued as wrong by the natural law theorist and philosopher Thomas Aquinas.

In the tragic play Antigone, Sophocles has described that Antigone acted against the laws of the society, or in other words positive law, to arrange burial rites for her brother, Polyneices. The city of Thebes, which was being ruled by Creon at that time, declared Polyneices as a traitor who had lost the affiliation with the city by acting against it in the war. Creon ordered that the dead body of Polyneices would be left in the open place for the animals and birds to destroy it. Antigone was not willing to accept the positive law and leave the dead body of her brother. She arranged for his last rites and buried him, believing that the natural laws are supreme. She also believed that the god has commanded the human beings to bury the dead bodies after performing their last rites and nothing can take away that right from the dead, as well as from their family to enact the procedure due to their loyalty towards them. She ignored the ban of the ruler imposed on her due to the positive laws and preferred to remain loyal to her dead brother, which brought the wrath of the ruler towards her. When her sister tried to warn her against the circumstance she would have to face in future in case she enacts according to natural law, Antigone told her that she would prefer to please the dead and god, instead of pleasing the living people. Sophocles has presented her ideology in the following words,

“And even if I die in the act, that death will be a glory.

I'll lie with the one I love and loved by him –

an outrage sacred to the gods! I have longer

to please the dead than please the living here:

in the kingdom down below I'll lie forever.

Do as you like, dishonor the laws

the gods hold in honor.”

She was not at all worried about going against the laws of human beings, as she firmly believed that she is not doing anything wrong by following the command and law of God. She was confident about her actions because of her beliefs that she would be honored by God, even if she is punished by the ruler of her society and the eternal life is more important than this worldly life, so she wanted to be successful in the afterlife. On the other hand, the ruler of Thebes, Creon believed that following the positive laws is quite important to keep a strict check on the general public and maintain the peace and order of society. The act committed by Antigone was clear disobedience of the positive laws of the society, threatening the rebellion of the society in the future as well. Creon punished Antigone for acting against the positive law. His son, who was engaged to Antigone, tried to change his opinion and convince him to not punish her, however, Creon was not ready to accept the reasoning of any individual. He was of the view that being the king of Thebes, he had the right of enforcing his laws on the people to ensure the peace and progress of the society, while his son held the point of view that he would face the criticism of the society due to his ideology. Sophocles described the argumentation between the father and son in the following words,

“Am I to rule this land for others-or myself?

HAEMON It's no city at all, owned by one man alone.

, CREON 'what? The city is the king's – that's the law!

HAEMON: What a splendid king you'd make of a desert island you and you alone.”

The concern of obedience or disobedience to the law is clear in the tragic play as Creon and Antigone face the dilemma of preferring one over the other. Creon is in the favor of positive law, while Antigone affiliates with the natural laws. Thomas Aquinas has also shared his concern about obedience or disobedience of the law, which can be explored in the light of the tragic play. According to the philosopher, the natural laws hold greater importance and value as compared to the positive laws, therefore; neglecting the natural laws is actually disobedience. On the other hand, if a person disobeys the laws of the human beings, in order to follow the laws of nature, it cannot be declared as disobedience, as he or she is obeying the orders of the supreme. Nothing can be considered more important or valuable over the words of the god. Thomas Aquinas holds the point of view that there is no comparison between the natural and the positive laws. However, if the situation comes to the point that a person can only opt one option, then there is no doubt that the positive laws would be unjust and following the natural law is fair and just. The case of Antigone is similar to the said scenario as she had to fight against Creon who preferred his laws over the natural laws and punished Antigone for being disobedient. In reality, he was the one who was being disobedient towards the laws of nature, as there is no doubt in the supremacy of the laws of nature over the laws of human beings. The philosopher has explained that nature has formulated its laws considering the well-being, peace, and prosperity of humanity all over the world. On the other hand, the laws of human beings are formulated according to the peace, prosperity, and benefit of some specific community or area of the world, which is the main reason that the laws of different countries and region are distinct from each other. There is no harm in formulating and following the positive laws, as they are necessary for the development of the distinct societies. The point of concern as explained by Aquinas is that the positive laws should not clash with the natural laws and if such scenario occurs then the priority and preference of the human beings should be following the natural laws while ignoring their disobedience to the positive laws.

Obedience or disobedience of the law is the major theme of Sophocles' Antigone and through the tragedy of the play, the author has tried to give the message that natural laws are superior to the positive laws. He has shown that Creon who was the ruler of Thebes, lost his valued relationships and rule as the punishment of not giving preference to the natural laws. Aquinas has also conveyed the point that human beings cannot become triumphant if they ignore the laws of nature and act against them. They will have to face the wrath of the supreme force, so it is quite important to do what is favored by nature, instead of giving preference to the laws of human beings. Creon’s exercise of his legal power does not fit with the rule of law as interpreted by the concept of law shared by Thomas Aquinas. Creon supported the law which was formulated by human beings according to their own benefit, which hindered the well-being of humanity across the world. He wanted to punish the brother of Antigone by curbing his burial rites in the light of positive laws, which cannot justify the supremacy of humanity. His law cannot be considered preeminent because it was not selfless and ensured the peace of humanity, but it was an effort of making the people fearful of going against the opinion and will of the ruler, even if they were right. Antigone’s response to Creon’s ‘law’ is an exercise of obedience towards the natural law, even if it is deemed disobedience towards the positive law. She has tried to ensure the supremacy of humanity by risking her own life. On the other hand, Creon also risked his life, as well as the life of his family by not surrendering to the natural laws and considering him supreme over nature. The proposition that Antigone exercised disobedience towards the law of higher force is not true because the play provides evidence of her righteousness. If she had been wrong, then the wife and son of Creon would not have committed suicides which became the suffering of Creon. He was the one who was at fault, therefore; suffered the heartache of losing his family, after punishing Antigone for her disobedience towards the positive law. The play has clearly highlighted the point that the laws of the kings can never be more valuable and worthy than the laws of nature, which is more considerate and kind towards the humanity as compared to the worldly kings or rulers.

The themes and lessons of Antigone are relevant to the legal issues concerning obedience to the law in Australia today in a number of ways. One of the most points to consider in this regard is that each and every society of the world is making progress in a peaceful manner because its authorities have worked hard to formulate the positive laws in the light of the natural laws. The Australian society is no exception as the government and legislative bodies have worked hard to ensure that the laws of the state do not contrary to the laws of nature. Most of the times, the positive laws are not strikingly contrasted with the laws of nature, because the well-being of society cannot be ensured while neglecting the natural laws and it is the most important element of the positive law as well. Plays like Antigone and philosophers like Thomas Aquinas became the guiding light of the western countries, especially Australia when the legislative bodies worked on the formulation of the laws. The philosophers who have taught the society the art of living and making progress made it clear through their teachings that morality and law are connected with each other and cannot be treated as separate identities. So, the formulated laws must be moral, which will eventually ensure their justification and fairness. The Australian society has also ensured the morality of its positive laws, which ensure the fairness of the judgment, as well as its connection with the natural laws. Natural laws were always considered to be linked with religion; however, even after being distanced from the religious teachings and practices, the western world has ensured the connection of the natural law with the common laws of the society. Even after being secular in thoughts and practices, the government of Australia has ensured to not compromise the morality and validity of the common or positive law. One of the most important examples of natural law being embedded in the positive law of Australian society is the reasoning process of the appellate courts. The court authorities ensure to provide an equal chance of conveying their reasoning to the parties involved in the case and share their precedents. The court authorities do not make the judgment on the basis of one party’s claims in order to ensure the fairness of the judgment while basing it on morality and not on personal thinking or attachment. Another important thing to consider in this regard that Australian legislation allows the authorities to nullify the positive laws, in the light of the natural laws; however, natural laws can never be ignored or nullified. Natural laws, which are the actual source of most of the positive laws, do not need any modification in them, while there is always a room for improvement in the positive laws to make the judgments fairer and just for the general public.

Sophocles Antigone is based on the notion of obedience or disobedience to law. The tragic play highlights the importance of conforming to the laws of nature, even if the individual has to disobey or ignore the laws of the general society made by human beings. Thomas Aquinas, a natural law theorist, has shared the ideology that the laws of nature are supreme, more valuable and worthy as compared to the positive laws, which are actually formulated by the general societies. The reasoning behind this is that the laws of nature are more concerned and promising about morality as compared to the laws derived by the human beings according to their own society as they contain elements of selfishness and personal benefits of one group over the other. On the other hand, the laws of nature deem all the human beings in every nook and corner of the world as equal entities, deserving equal treatment, and benefits. The play, as well as the teachings of the philosopher, gives the message of making the natural laws as the guiding force of common or positive laws of the society. It also highlights the point that the peace and well-being of the humanity are disguised in following the laws of nature, as it will ensure the morally fair and just treatment of all the individuals while giving equal importance and value to all, irrespective of their social status. The Australian legislative authorities also function according to the supremacy of the natural laws over the common laws, in order to ensure the fair treatment of all the citizens, while confirming the smooth and steady progress of the society. The Australian society has adopted the natural law as the guiding force towards the development of the positive or common law, which is one of the most important reason that the laws of the society do not conflict with morality and ethics.

Bibliography

Amiridis, Kostas. "The shadow of Sophocles: Tragedy and the ethics of leadership." (Business Ethics Quarterly 28, no. 1 (2018): 15-29).

Ascarelli, Tullio. "Antigone and Portia." (The Italian Law Journal (2016): 604).

Boyle, Joseph. "Natural law and the ethics of traditions." In Thomas Aquinas, pp. 157-184. (Routledge, 2017).

Cairns, Douglas. Sophocles: Antigone. (Bloomsbury Publishing, 2016).

Charlton, William. "Natural law, Aquinas and the Magisterium." (New Blackfriars 96, no. 1063 (2015): 326-344).

Dalzell, Thomas. "Theology after Postmodernity. Divining the Void: A Lacanian Reading of Thomas Aquinas." (2015): 259-261.

Darwall, Stephen. "The foundations of morality: virtue, law, and obligation." (The Cambridge (2017)).

d'Entreves, Alexander Passerin. Natural law: An introduction to legal philosophy. (Routledge, 2017).

Finnis, John. "Liberalism and Natural Law Theory." In Thomas Aquinas, pp. 139-156. (Routledge, 2017).

Fletcher, J, "Citing the Law in Sophocles's" Antigone"." (Mosaic: a Journal for the Interdisciplinary Study of Literature. (2008) 79-96.)

Kalpakgian, Mitchell. "The Right to Life and the Natural Law." In Australian Association for Professional and Applied Ethics 12th Annual Conference, 28–30 September 2005. 2019.

Lisska, Anthony J. "The Philosophy of Law of Thomas Aquinas." In A Treatise of Legal Philosophy and General Jurisprudence, pp. 285-310. (Springer, Dordrecht, 2015).

Pearsall, Gurney. "Revisiting Antigone's Dilemma: Why the Model Rules of Professional Conduct Need to Become Model Presumptions That Can Be Rebutted by Acts of Ethical Discretion." (SCL Rev. 67 (2015): 163).

Tebbit, Mark. Philosophy of law: An introduction. (Routledge, 2017).

Weber, Paul J. "Toward a Theory of Civil Disobedience." (The Catholic Lawyer 13, no. 3 (2016): 4).

Subject: Law and International Law

Pages: 8 Words: 2400

Read

Theory Informs Policy

Your Name

Course Code

Instructor’s Name

Date

The program “Crime during the Transition to Adulthood" explains the transition on how youth change and involve in delinquency as they leave out-of-home care. The transition from childhood to adulthood is arguably the most difficult phase of any human life. For some young people, the guidance of their parents may still be available but for many teens, this phase may especially be difficult while they are leaving their child welfare system. Many people move out to independence gradually; however, those who live in childcare systems don't get any guidance and care that parents can provide. However, this is the age where most young people are at risk and need more emotional and financial support than ever. This program studies the criminal behavior and the justice system that deals with those crimes among young people that are aging out from their home care center and stepping in adulthood. The research also covers the effect of social bonds that a person makes on his intent towards a crime. The scope of this program covers

The difference among offending patterns in foster youth as compared to that of the overall population.

The effect of placement type on criminal behavior during the transition from childhood to adulthood.

The effect of previous experiences of aggressive behavior with parents, educational system, and workplaces.

This program/study was intended to meet the social control theories of “Travis Hirschi's Social Control/ Social Bonds Theory,” “Walter Reckless’s Containment Theory,” and “Development/Life Course Theory.”

The first part of the program refers to Travis Hirschi's social control theory in which he proposed different forms of social bonds that helps in encouraging rationalization and socialization. While the second and third research topic relates specifically to “Walter Reckless’s containment theory” and “Life course theory” respectively. The report examined delinquent behaviors which ranged from serious acts of violence, minor property offenses, to taking something from the store worth even less than $50, and even shooting or stabbing someone ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"RYPBT9LO","properties":{"formattedCitation":"(Cusick et al.)","plainCitation":"(Cusick et al.)","noteIndex":0},"citationItems":[{"id":142,"uris":["http://zotero.org/users/local/cYhHNKoU/items/NELNKJZE"],"uri":["http://zotero.org/users/local/cYhHNKoU/items/NELNKJZE"],"itemData":{"id":142,"type":"book","title":"Crime during the transition to adulthood: How youth fare as they leave out-of-home care","publisher":"National Institute of Justice, Office of Justice Programs, US Department of …","ISBN":"1-249-83687-5","author":[{"family":"Cusick","given":"Gretchen Ruth"},{"family":"Courtney","given":"Mark E."},{"family":"Havlicek","given":"Judy"},{"family":"Hess","given":"Nathan"}],"issued":{"date-parts":[["2010"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Cusick et al.). The study found that most of the crimes are committed by foster youth when they are between the ages of 16-17 years old. The differences between foster youth and their Add health peer in their offending behaviors were very few. The results of offense were less in both of these cases as compared to that between the ages of 16-17. However, across the two sample groups, the differences were more than two to three percent in both cases. The engagement chances of foster youth in delinquency are much more than that of the general public. In the sample groups, almost a quarter of them took part in a group fight, while 6 percent of them drew a knife or gun at someone. At the age between 21 and 22, the differences between the sample groups even decreased further between the groups under study. The significant difference that was found between these two groups stealing and damage of property, which were more common in foster youth. When compared to add health youth, the number of foster youths that were being arrested at the ages between 18 and 19 was far more. This was true in both the cases of males and females. The number of females that were arrested from foster youth were shockingly even more than their male counterparts in add health sample. The delinquencies such as drug selling, threatening someone, use of weapon and involvement in a physical fight all declined from age 19 to age 21. In general, delinquent acts increased in late adolescence and started to decrease in early adulthood.

The effect of marriage, parenthood but especially in this case, employment are key factors that can contribute positively to social interactions and have a strong impact on routine activities. They help in the reduction of offender’s desire to continue doing criminal acts by reducing criminal opportunities. The theories that were related mostly focuses on interaction with the environment in which young people are living. The hypothesis that a person is maturing depends upon the stabilizing of emotions, more knowledge about one's environment and focus on more future-oriented personal grooming. Such changes which occur with age increase one intellect to reason morally and reduce his/her impulsive behavior. However, the change with increase in moral intellect also differs in foster youth as compared to the rest of general public because they lack of support and guidance.

This program relates itself to Travis Hirschi's Social bond theory by explaining the effect of the lack of attachment to parents, lack of commitment in the form of participation in social activities that could have been possible with the presence of parents. This program also discussed a lack of involvement in social activities that can shape a person’s moral values when he ages out from adolescent to adulthood. The attachment of parents is strong and can prevent people from doing any serious crime; however, if they are not present, that can cause an even greater effect in the involvement of crime. Young people usually fill the lack of affection their parents can provide with the abuse of drugs and involvement in crimes.

The second theory that is being related in this program is Walter Reckless's containment theory in which relates to the increase of criminal acts and its external and internal containments. The theory states that for every person, there is an internal and external structure which cause containment and protection. This protection acts as a shield from delinquent acts. However, foster youth lacks such a defense system because there is no one to act as a guide for different life activities and define a set of limits and responsibilities for him. Foster youth also lacks a clear sense of belonging to a specific group or person. These things result in the absence of self-control, well-developed conscience and frustration tolerance.

The last theory, which is related to this program, is the theory of development and life course theory. This theory explains the effect of behaviors that can cause deviation in actions over time. The program mentioned the effect of age on the development of personalities and the reduction in delinquencies with it. There are in general four basic components that can define this prevention of involvement in criminal offenses. 1) finding it more difficult to spend time in prison. 2) criminal justice laws for adults are severe which makes them think of the long-term consequences they might face. 3) The stress and fear caused by the laws overwhelm them from doing anything. 4) Increase in the Likelihood of punishment. These fears can be caused by the structural expectations that they might face as well as the building of intimate relationships and responsibilities ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Czpytwbn","properties":{"formattedCitation":"(Lussier et al.)","plainCitation":"(Lussier et al.)","noteIndex":0},"citationItems":[{"id":143,"uris":["http://zotero.org/users/local/cYhHNKoU/items/VBQRNSSI"],"uri":["http://zotero.org/users/local/cYhHNKoU/items/VBQRNSSI"],"itemData":{"id":143,"type":"article-journal","title":"The adolescence–adulthood transition and desistance from crime: Examining the underlying structure of desistance","container-title":"Journal of Developmental and Life-Course Criminology","page":"87-117","volume":"1","issue":"2","author":[{"family":"Lussier","given":"Patrick"},{"family":"McCuish","given":"Evan"},{"family":"Corrado","given":"Raymond R."}],"issued":{"date-parts":[["2015"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Lussier et al.). The reduction in crime can also be caused by increased responsibilities and mental maturity.

The program was successful in finding out their results. These findings can have many implications and effects on policymaking in the future. The comparison of this research of the Midwest study and Add health data has helped in determining the result that foster youth, just like their peers involve in fewer crimes and delinquencies as they move into their adulthood. However, the reports of criminal behaviors were more in foster youth as compared to general public with exception of a few differences between the ages between 19-21.

Work Cited

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Cusick, Gretchen Ruth, et al. crime during the Transition to Adulthood: How Youth Fare as They Leave out-of-Home care. National Institute of Justice, Office of Justice Programs, US Department of …, 2010.

Lussier, Patrick, et al. “The Adolescence–Adulthood Transition and Desistance from Crime: Examining the Underlying Structure of Desistance.” Journal of Developmental and Life-Course Criminology, vol. 1, no. 2, 2015, pp. 87–117.

Subject: Law and International Law

Pages: 4 Words: 1200

Read

THESIS PAPER

Your Name

Instructor Name

Course Number

Date

Abstract

The growing cases of human trafficking on the national and international level made it essential to give some comprehensive attention to this issue and propose some realistic solutions. The primary focus of this research work is to critically examine different aspects of human trafficking and sex work, mainly considering its prevalence in the San Francisco and Bay Rea Region. These geographical segmentations are selected because these regions are ranked as top areas affected by the increasing trend of human trafficking. It is crucial to establish that the phenomenon of human trafficking is mostly turned into a human rights violation in the form of prostitution. Examination of the actual scope of this issue is an essential step to determine the magnitude of this calamity and propose suitable measures accordingly. The increasing tendency of human trafficking in the United States encouraged law development and enforcing institutions to modified legal policies according to the changing spectrum of this issue. The active intervention of the Trafficking Victims Protection Act (TVPA) in this context can never be ignored, referring to ensure improved forms of protection for victims of human trafficking. The establishment of this entity eventually made it possible to recognize the difference between victims of human trafficking and sex offenders. This form of distinction is eventually assistive for police to deal with the scenario of human trafficking correctly. Furthermore, there is a need for more targeted practical actions to reduce the risk of human trafficking issues, particularly in the case of a vulnerable area of San Francisco. The target of controlling human trafficking can be achieved through the active involvement of all the stakeholders in the forms of law development institutions, police, and overall community.

Human Trafficking and Sex Work Primarily in the San Francisco & Bay Area Region

Introduction

Human trafficking is comprised of various forms of exploitation; however, exploitation of people for sexual purposes comprised of the largest group of victims. It is noteworthy to consider the fact that human trafficking receives the least attention by government administrations and organizations. A critical examination of human trafficking for labor and sexual exploitation demonstrates that it is a serious human rights issue. According to an estimation by experts, this is a billion dollars industry. It is difficult to understand the scope of trafficking due to the lack of consistent data about this issue (Baker). Furthermore, the hidden nature of trafficking makes it even more difficult to hold traffickers accountable. The United States of America is one of the most significant destinations for human trafficking victims. According to the statistics of the Department of Justice, nearly 18,000 individuals are trafficked in the US. These statistics by the US Department of Justice indicates the severity of this issue. It is important to consider the fact that the San Francisco Bay Area is one of the most prominent hubs for human trafficking. This region is a hot spot for the trafficking of children and women. According to the reports of the Federal Bureau of Intelligence (FBI), San Francisco Bay Area is among the 13 highest child trafficking areas in the US. Unfortunately, it is not categorized as a new crime due to its long prevalence in that region. Sadly, the victims of human trafficking or sex trafficking are unable to trust government organizations and law enforcement agencies. Manipulation by traffickers, different traditional and cultural attitudes, and previous experiences are major reasons for not trusting government and law enforcement agencies. Traffickers often exploit people who are engaged in commercial sexual practices, LGBT people, and people of color. They also exploit discrimination and social stigma against immigrants in the United States. The recruitment of victims in the underground market of the San Francisco Bay Area significantly affects its credibility. In the past few years, significant steps are taken by government officials to combat this serious issue. San Francisco has also increased efforts for recognition of traffickers, and their business to mitigate the severity of this issue systematically.

Literature Review

Laws, Policies, and Response

It is noteworthy to mention that sex trafficking has received a significant amount of attention in the US. In the past few years, number of laws were passed to overcome severity of human trafficking in the US. In 2000, the Trafficking Victims Protection Act (TVPA) was enacted in the US in order to address this issue (Baker). The protection of people is highly important to minimize the prevalence of human trafficking. In the fifty-fifth session of the General Assembly of the United Nations, TVPA was introduction along with its significance to control this issue (Hepburn, Stephanie, and Simon). During that session, the US signed the protocol to subdue and stop human trafficking. It is notable to consider that the United Nations was seriously concerned to overcome international organized crimes. The acceptance of this protocol by the US was the result of the efforts of the UN. This protocol is well known as the Palermo Protocol (Baker). In addition to this, Victims of Trafficking and Violence Protection Act (VTVPA) 2000 was passed by Congress that comprised the TVPA as well. President Clinton signed VTVPA on 28th October 2018. It was the first federal law that addresses the issue of trafficking in the US. The US is a market where humans are brought through trafficking. Therefore, the purpose of this act was to focus on various trafficking activities outside the US. Government and law enforcement agencies needed to control the sex trafficking of US citizens and minors. It is obvious that the enactment of this policy recognized human trafficking as a crime (Hepburn, Stephanie, and Simon). Furthermore, individuals who were exploited for sex trafficking were firstly considered as victims with the help of policy. Prior to the existence of the TVPA, these individuals were considered as criminals rather than victims.

With the help of TVPA, the victims of sex trafficking are now considered as crime victims if they are entering the country through illegal means. Most importantly, rather than considering as undocumented individuals, this policy contains a significant distinction for these individuals as crime victims (Hernandez). If the victims of human trafficking are categorized as 'certified' by government agencies in the US, then they are entitled to receive special services under the TVPA. The label of 'certified' acknowledges that the victim of sex trafficking is collaborating with different government agencies in order to prosecute the defendant. However, it is also essential to understand the limitation of this act in order to get better insight. Undoubtedly, a recognized victim of trafficking can be the label of certified in order to get federal benefits (Hernandez). However, the recognition process of this labeling is extremely slow and difficult. One of the major reasons behind this difficulty is collaborating with multiple government agencies at the same time (Hernandez). There is a number of obstacles that are associated with this kind of coordination. A victim of human or sex trafficking has to cooperate with immigration agencies and law enforcement agencies. It is even possible that a victim may be reluctant to collaborate with government agencies regarding his/her exploitation by the trafficker. Due to this particular reason, it is possible that the victim may not be considered as 'certified.' If not 'certified,' it is unable for the victim to receive federal benefits such as food stamps and health care services (Medicaid).

Undoubtedly, a victim of human trafficking needs to qualify for certification. Once victims receive certification, it makes them eligible for permanent residency in the US. They can easily apply for T-Visa in order to pave the way for their residence in the US (Hepburn, Stephanie, and Simon). A victim of human trafficking must get eligible for T-Visa as it allows for potential family reunification. It will further make spouses, children, and parents of that victim eligible for T-Visa. A critical examination of this type of legislation is highly important to understand its effectiveness in order to protect the victims of human trafficking (Hernandez). These steps and legislations by the US government are identifying and suppressing human trafficking in the United States. In addition to the protection of victims internationally, another piece of legislation was formulated to address trafficking domestically. The Victims of Trafficking and Violence Protection Act passed in 2000 to combat the high prevalence of human and sex trafficking. The creation of this act was based on fighting the crime of sex trafficking. According to this act, it was made compulsory for all nations that are included in the UN to fight sex trafficking actively. In order to combat these serious issues, the VTVPA mandates to increase the number of law enforcement agencies. As per VTVPA mandates, sex trafficking can be effectively controlled if law enforcement agencies are provided with significant funds to cater to sex trafficking. Furthermore, VTVPA also encouraged nations to make valuable changes in policy in order to control sex trafficking. The existence of this act compelled nations to make proper policies and laws to identify and punish sex traffickers. It was made clear by VTVPA that nations must take serious actions against these sex traffickers; otherwise, political benefits would be severed from these nations. These political benefits include non-trade and non-humanitarian related aid by the United States.

Victims of Sex Trafficking

It is of utmost importance to examine the impact of the sex trade industry on victims. It is necessary to get an in-depth analysis of sex trade on crime victims. Victims of the sex trade are suffering from both physical and psychological issues. Men, women, and children are vulnerable to become a victim of the sex trade industry (Hernandez). A critical analysis of the victims of the sex trade industry provides an estimation of the most vulnerable population for human and sex trafficking. The coercive nature of participation is a serious issue regarding sex trafficking (Cockbain, Ella, and Bowers). These are involuntary participants who are forcefully compelled to work for the sex trade industry. Traffickers use force or coercion to get involuntary participants. It is essential to consider that the United States is actively identifying and addressing this problem in order to save the victims. A human trafficking victim is defined by three elements; the act, the means, and the purpose. The victims of trafficking are special children. Children who experience abusive upbringings and problem stricken homes are considered vulnerable to trafficking (Hernandez). There is a significant relationship between street prostitution and childhood sexual exploitation. Majority of victims of trafficking experience sexual exploitation as a juvenile (Cockbain, Ella, and Bowers). It is important to mention that this population is highly vulnerable to the sex trade. Tactics such as false promise, violence, threat, lies, and debt bondage make them vulnerable to stay in the sex trade. Innocent victims are forced to participate in sexual activities once forced into the sex industry. Researchers have found that the majority of these victims are found in locations such as massage parlors, online escort service, hostess clubs, residential brothels, and the street (Cockbain, Ella, and Bowers).

The victims of sex trafficking are mostly recruited by criminal networks or organized business. These organized businesses include mafias, biker gangs, escort services, clubs, brothels, and bars. Traffickers often take advantage of the poor economic condition of these individuals. Researchers have found that economically disadvantaged individuals are more easily targeted by these organized businesses. Human trafficking is often done with the false promise of money due to the monetary disadvantages of victims (Hernandez). It is observed that the recruitment of minors is usually done in public or behind the scenes. In this advanced world, recruitment is also done through online chat rooms and classified ads. According to Domestic Minor Sex Trafficking reports, traffickers also recruit individuals by meeting them in public places such as in child care centers, near school grounds, and shopping malls. False promises are made with individuals such as no detection in order to recruit them for sex traffickers. Upon selection, these individuals have transported far away from home in order to limit their opportunity to return home. High sexual tourist demands are catered by transporting these victims into the cities, bars, and massage parlors in order to commence business (Hernandez). According to a report by the Domestic Minor Sex Trafficking, there is a high demand for this individual during the annual National Football League Super Bowl. It is essential to mention that this league attracts various tourists, which makes it a place of high demand.

Discussion

Human trafficking is recognized as one adverse form of human rights abuse that immensely affects the number of people around the globe. It is estimated by the International Labor Organization that there are approximate there are almost 24.9 million individuals who were characterized as the sufferers of forced labor for the year 2016. Undoubtedly, this kind of statistic is alarming that requires the necessary attention immediately to offer suitable preventive measures of this issue. It is also noteworthy to mention that on the global level, the domain of trafficking represents a $150 billion of the market every year that reflects the intensity of this issue. Moreover, the issue of human trafficking also greatly influencing the country of the United States in various forms that require instant attention. The entity of the National Human Trafficking Hotline established this fact that in 2016, there are 7,621 cases witnessed under the domain of human trafficking. These cases are one part of the total number of individuals who trafficked in recent times. It is essential to understand the intensity of the issue of human trafficking is more complex and intense as compared to the reported figures (Cockbain, Ella, and Bowers). Due to various loopholes and complications in this scenario, it is difficult to estimate the actual figures of how many people are suffering from human violations in the form of human trafficking. The hidden nature of this problem made it complex to include every detail in the report in the correct manner because there are many uncovered aspects concerning this issue. The complications of this issue further increased because, in many cases, victims of human trafficking are afraid to report this human right violation. Due to all these complications of this issue, there is no single reliable way to estimate the magnitude of human trafficking as a social problem and offer suitable forms of protection. The complexity of the problem of human trafficking requires to assess various aspects of this concern deeply and tries to apprehend the root causes at the early stages. This form of consideration is important to provide suitable assistance at the point where it is most needed. This objective of offering better intervention can only be achieved by enhancing the awareness level of people with the inclusion of proper policy establishment.

It is significant to limit extensive research on this issue only to the state of California to propose the most appropriate policy solutions according to the requirements of the region. The statistical information shared by the National Human Trafficking Hotline explicitly indicates that the region of California is recognized as one main area of the country where trafficking is one major issue at the community level. There are some prominent aspects concerning this issue in California, and these elements are identified as prominent proximity in case of international borders, vigorous public, and commercial shipment. The growing number of immigrants in the country. These domains can be established as crucial factors referring to the problem of human trafficking. These factors can be established as the main stimulators that increase the potential risk of human trafficking in the country. the problem of human trafficking defined by California law as, “a form of crime that makes it compelling or coercing for a person to involve into forceful labor or services, or involve them into sex acts without their consent.” These aspects are critical in the form of human trafficking that requires proper intervention at both state and national levels. A report published by FBI in 2009, ranked areas of Los Angeles, San Diego, and San Francisco in the top ten regions where the problem of child sex trafficking is immense.

The research on the problem of human trafficking further limited to the area of San Francisco to comprehensively investigate the implications and adversity of this issue. The entity of the San Francisco Mayor's Task Force on Anti-Human Trafficking focuses on the consideration of collaborative and detailed data-driven prospects to successfully direct all the stakeholders to offer better and well-aligned long-term measures for the growing issue of human trafficking. It is important to establish that this problem is wide-ranging that requires some detailed form of consideration and intervention to offer suitable practical measures. The primary aim of the Task Force is to adopt the approach of immediate responsive action in case of a person's individual experience. This perspective is mainly formed to consider one's approach of self-determination and to ensure the protection of victims from further traumatization or criminalization. The institute of the Task Force committed to ensuring successful and active association with all the other stakeholders such as government, business, and different community-based organizations considering the domain of relevant policies to successfully address the problem of human trafficking (Walker-Rodriguez, Amanda, and Hill). It is one of the central responsibilities of Task Force to develop suitable policy recommendations to successfully improve the life experiences of those individuals who are trafficked. It is also significant to mention that the authority of the Task Force also greatly supports the domain of San Francisco as a sanctuary city and actively focuses on providing the necessary support to all immigrants and refugees without considering their immigration status.

Role of Pimps

A detailed consideration of the active role of pimps in the entire scenario of human trafficking is also a necessary consideration to determine the potential intensity of this specific concern. There is a number of ways adopted by traffickers to ensure the successful hiring of their victims. The most common strategy adopted by traffickers to pretend romancing association with victims and get their confidence to manipulate them for different sexual activities as the business. This form of trafficking stunts named "Romeo pimps," and it is one of the most common forms of human trafficking.

Kidnapping is another complex form of human trafficking in which victims are kidnaped and beat by traffickers to perform different forceful activities. This type of compelling trafficking is recognized under the prospect of "Gorilla pimps," Another form of trafficking appears in the situation where victims are a trap by traffickers through false promises regarding some form of job. All these forms of trafficking clearly indicate the existence of complex networking that involves consideration of various shareholders. It is important to deliver some financial statistics in the context of traffickers to establish better inferences in case of the magnitude of the issue of human trafficking. It is estimated that a trafficker can usually make $150,000-$200,000 per child each year, and this ratio is alarming. Additionally, a trafficker has a chance to immense violate an average of 4-6 girls per year. It is roughly estimated that traffickers situated in one city usually earned an average of $32,822 per week, and these numbers are, without any doubt, are shocking.

Various practical strategies adopted by traffickers is to control the movement of their victims and use them for the objective of forced working or service. Traffickers greatly influenced the functioning of victims by controlling them psychologically, physically, and emotionally. Insincere affection, manipulation, use of substance, violence, and emotional abuse are the prominent tactics used by traffickers to control the lives of victims and encourage them to pursue their plans (Fong, Rowena, and Cardoso). The extensive consideration of these aspects eventually made victims the trauma-bonded to the traffickers and made it difficult for them to get escape from the trap of human trafficking. It is one unfortunate fact that traffickers utilized various techniques to control their victims and keep them imprisoned in a tragic manner. The phenomenon of captivity eventually made it almost impossible for victims to successfully interact with the public and find some suitable way of releasing from imprisonment. The phenomenon of proper and strict monitoring is adopted by traffickers to control the social movement of their victims and create the prospect of isolation for them. Different important documents of victims, such as their passports, are also controlled by the traffickers to forcefully control their movement (Fong, Rowena, and Cardoso). Different forms of threat or use of violence is another critical strategy adopted by traffickers to victimize individuals and force them according to their plan of action. Furthermore, financial obligations are another prominent approach considering the overall practical domain of human trafficking. It is obvious that money earned by victims controlled by traffickers to maintain their prospect of imprisonment.

The Exploitation of People for Their Labor as Sex Workers

It is observed that there is an existence of 220 licensed massage in San Francisco, and these developments are tragically linked with the growing issue of human trafficking. The institute of Polaris shared a factual report that clearly indicated that the domains of labor and sex trafficking are growing in the case of various forms of business advertising, such as the prospect of massage developments in the country (Hepburn, Stephanie, and Simon). This form of assessment further established this fact that the region of San Francisco is characterized as the hub city of these activities that require necessary fixation. There are many visible indicators in this area that clearly indicate the existence of the issue of human trafficking, and this practice is growing with time (Fong, Rowena, and Cardoso). There is a wide range of practices specified in the form of massage establishment, and this issue is chiefly associated with the problematic features of prostitution and human trafficking. It is reported that massage businesses established in the region providing illegal sex services to the clients by forcing their workers. Under the immense pressure of forced employment, it becomes necessary for workers to involve in sexual activities against their will. Many Chinese massage business employers are more likely to be a part of human trafficking in order to get Asian people to work in the massage parlors (Hepburn, Stephanie, and Simon). Rather than classifying as employees, they classify their workers as independent contractors. Consequently, they force them to work with them in exchange for a handful amount of money (Fong, Rowena, and Cardoso). They do not provide them with paid sick leaves, overtime, and worker’s compensation. It is observed that the pressure of employers compelled their workers no to sue them. These workers are usually afraid of losing their jobs. The area of San Francisco is comprised of many hotels, bars, and brothels that provide sex services. Victims of human trafficking are forced to work in these massage parlors and bars to earn money. The provision of illegal business by these massage parlors are making much more money. It is notable to consider that traffickers use threat violence to convince these victims to work as a sex worker. Furthermore, they also terrify these victims with the threat of shaming them and their families (Jones). Consequently, these victims face hardships under the supervision of traffickers or pimps. Moreover, it is also crucial to mention that workers working in message centers chronically faced the stigma of sex workers due to the growing trend of sexual activities offered by these centers for their clients.

Policing Prostitution in the US

One of the most tragic aspects associated with the growing concern of human trafficking in the country is that there is immensely limited control of law enforcement institutions to control the rampant of human trafficking. The active consideration of this concern is closely associated with past developments (Farrell, Amy, and Cronin). It is observed that the practice of prostitution was not categorized as criminalized activity in the country until 1910 the Congress passed a comprehensive form of legal documentation considering women’s rights. States of the country also passed different laws to control the phenomenon of the sale of sex in the form of prostitution. The central objectives of these legal measures are the protection of human rights, control the risk of sexually transmitted diseases, and ensure proper protection to women (Kotrla). It is noticeable to establish that local laws in case of anti-prostitution diversely followed in different states that eventually influence the spectrum of policing against illegal sexual activities in the area (Farrell, Amy, and Cronin). Order-maintenance policing efforts by Police Department are recognized as necessary domains to provide legal protection to women and reduce the chances of prostitution in the area. The development of legal actions in the form of targeted regional areas eventually increased the perspective of scrutiny of these illegal activities by local law enforcement agencies. The statistics of the country indicate that the domain of prostitution enforcement in different cities of the United States of America had begun to fall during the period of the 1980s and 1990s (Farrell, Amy, and Cronin). It is established that arrests adopted the little form of practical action to reduce the risk for the people who engaged in different activities of selling sex.

Human Trafficking Laws Shift Focus

The unsuccessful domain of arresting to control the calamity of prostitution made it essential to offer some better legal measures to address the insufficiency of law in this context. The growing public concerns in the form of victimization of women and children mainly under the domain of prostitution made it essential to offer more aligned legal measures. During the period of the 1990s, the issue of prostitution was greatly reframed due to the rise of prostitution as a major social and legal concern (Wheaton et al.). There is the development of organized advocacy groups to ensure the successful survival of sex trafficking victims under the shed of the country’s law. The legal domain of Victims of Trafficking and Violence Protection Act is developed in 2000 in the country (Farrell, Amy, and Cronin). The focal area of consideration for this entity is to explicitly define a new federal legal form against the crime of sex trafficking, considering the factors of force, fraud, or coercion. The range of penalties is also enhanced by TVPA in the existing form of offenses such as domains of slavery, peonage, and unintentional form of servitude. The establishment of various legal domains by TVPA made it critical for criminal justice officials to follow the prospect of reauthorization considering the aspects of indicting traffickers and provide necessary protection to victims. The year of 2014 was also important in this context when all states of the country passed laws considering the paradigm of criminalizing human trafficking by introducing diverse levels of penalties against the approach of human trafficking (Farrell, Amy, and Cronin). The intervention of TVPA also expended by changing social perception regarding the issue of human trafficking and victims of this calamity. This form of consideration also made it essential for police to make a clear distinction between trafficking victims and criminal offenders in case of the approach of prostitution enforcement.

Efforts to Stop Human Trafficking

The issue of human and sex trafficking is prevailing in the society. San Francisco is a highly vulnerable place for human trafficking. In order to combat the issue of human trafficking, the San Francisco District Attorney’s office (SFDA) should need to make proper policies, rules, and regulations for various government agencies in order to overcome this serious issue (Farrell, Amy, and Cronin). The SFDA Bureau of Investigations is poorly organized regarding the issue of human and sex trafficking. This organization is under-resourced and under-staffed. In the past few years, the Investigation Division of SFDA is working to combat low-level quality-of-life crimes. There was no immediate step taken to address the issue of human trafficking. Freshly elected San Francisco District Attorney Chesa Boudin is much concerned to stop the issue of sex trafficking from the San Francisco Bay Area. Boudin prepared a plan after holding the office in January to combat human and sex trafficking from the area. According to his plan, he wanted to expand the DA Investigation Division. The major reason for this expansion is to investigate corruption and crime. For that particular purpose, there is a need to investigate corporate boardrooms. Currently, DA does not have much staff and time to address the cases. As District Attorney, Chesa Boudin is motivated to expand the office in terms of staff and resources to put an end to white-collar corporate criminals. Furthermore, Boudin refocuses prosecutorial resources for sex trafficking in order to stop traffickers and their co-conspirator service-providers.

Conclusion

To conclude the above discussion, the San Francisco Area is well known to be a hub for human trafficking. Government administrations and organizations provide the least attention to human trafficking. Furthermore, the identification of traffickers is difficult due to the hidden nature of this industry. Therefore, these traffickers are difficult to hold traffickers accountable. Least attention by government agencies is one of the major reasons that the victims of human trafficking or sex trafficking do not trust them. Traffickers manipulate these individuals for the sex trade industry, which is highly critical. The district attorney of San Francisco has refocused all attention to stop traffickers in order to overcome this serious issue.

Works Cited

Baker, Carrie N. "The influence of international human trafficking on United States prostitution laws: The case of expungement laws." Syracuse L. Rev. 62 (2012): 171.

Cockbain, Ella, and Kate Bowers. "Human trafficking for sex, labour and domestic servitude: how do key trafficking types compare and what are their predictors?." Crime, Law and Social Change (2019): 1-26.

Farrell, Amy, and Shea Cronin. "Policing prostitution in an era of human trafficking enforcement." Crime, Law and Social Change 64.4-5 (2015): 211-228.

Fong, Rowena, and Jodi Berger Cardoso. "Child human trafficking victims: Challenges for the child welfare system." Evaluation and program planning 33.3 (2010): 311-316.

Hepburn, Stephanie, and Rita J. Simon. "Hidden in plain sight: Human trafficking in the United States." Gender Issues 27.1-2 (2010): 1-26.

Hernandez, Carolina. Sex trafficking in the United States: An exploratory study of the experiences of international and domestic women working in the sex industry in the US. Diss. Bowling Green State University, 2014.

Jones, Nikki, et al. "Experiences of Youth in the Sex Trade in the Bay Area." Center for Court Innovation (2016).

Kotrla, Kimberly. "Domestic minor sex trafficking in the United States." Social work 55.2 (2010): 181-187.

Walker-Rodriguez, Amanda, and Rodney Hill. "Human sex trafficking." FBI L. Enforcement Bull. 80 (2011): 1.

Wheaton, Elizabeth M., Edward J. Schauer, and Thomas V. Galli. "Economics of human trafficking." International Migration 48.4 (2010): 114-141.

Subject: Law and International Law

Pages: 18 Words: 5400

Read

Thesis Proposal

Name of Student

Name of Professor

Name of Class

Day Month Year

Thesis Proposal

The race of human being has witnessed potential and drastic changes in the recent decade. With the surge of technological advancement, several adversities surfaced. Fake news is one of the detrimental adversities which are an explicit manifestation of technological advancement. A wide range of researches has proved the adverse consequences of fake news in society. Primarily, the purpose of fake news is to destroy the credibility, truth and the prospects of an individual, institute or other entities. Since fake news strikes with a strong emotional appeal, society is urged to believe and spread that word overwhelmingly. Internet and certain social media platforms are the pioneers of spreading fake news. Besides, the manipulation of fabricated news in a political environment is apparent to each person. Several nations have advanced to promulgate laws to take stringent steps to confront the menace of fake news. Critical and extensive research is imperative to determine the variables and causes that fuel the spread of fake news. In other words, the need of the hour is to explore why fake news desecrates the social fabric, dignity of people, alienates families and undermines a rational discourse?

To begin with, the paradigm of fake news encompasses a broader horizon. It ought not to be restricted to particular instances and implications. Every person of a society is at severe risk. Moreover, the United States of America (USA) is not the only state faced with the challenge to battle fabricated news. Other states are also affected by the detrimental ramifications of fake news. For instance, a housewife in Brazil was accused on social media that she resembled a child kidnapper. In a few days, the lady was stoned to death. Such heinous are the manifestations of fake news ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"S5xGB92x","properties":{"formattedCitation":"({\\i{}Fighting_fake_news_-_workshop_report.Pdf})","plainCitation":"(Fighting_fake_news_-_workshop_report.Pdf)","noteIndex":0},"citationItems":[{"id":1923,"uris":["http://zotero.org/users/local/H8YOvGFC/items/EB5SC63E"],"uri":["http://zotero.org/users/local/H8YOvGFC/items/EB5SC63E"],"itemData":{"id":1923,"type":"article","title":"fighting_fake_news_-_workshop_report.pdf","URL":"https://law.yale.edu/system/files/area/center/isp/documents/fighting_fake_news_-_workshop_report.pdf","accessed":{"date-parts":[["2019",1,31]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Fighting_fake_news_-_workshop_report.Pdf). Merely a false accusation caused her to face death.

In addition, the honor and dignity of society get tarnished under the spectrum of fake news. Fake news platforms and websites nurture the propagandas, hoax and disinformation to target the people and families. For instance, Jennifer Alejandro Flores, a citizen of Catalonia suffered from severe mental illness for the rest of the life. Her mother struggled to bear the poor condition of her son and passed away. A photo of Jennifer circulated on social media platforms. The caption stated he intended to bomb the ship of Spanish police amid the Catalan independence phase. The police took him for questioning but were released. However, the depression and embarrassment caused him to get locked in a room. An acute evaluation of the instance illustrates the widespread dangers of fake news ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"x6VXwNPM","properties":{"formattedCitation":"(\\uc0\\u8220{}The Very Real Consequences of Fake News Stories and Why Your Brain Can\\uc0\\u8217{}t Ignore Them\\uc0\\u8221{})","plainCitation":"(“The Very Real Consequences of Fake News Stories and Why Your Brain Can’t Ignore Them”)","noteIndex":0},"citationItems":[{"id":1924,"uris":["http://zotero.org/users/local/H8YOvGFC/items/IZPBGXR4"],"uri":["http://zotero.org/users/local/H8YOvGFC/items/IZPBGXR4"],"itemData":{"id":1924,"type":"webpage","title":"The very real consequences of fake news stories and why your brain can’t ignore them","container-title":"PBS NewsHour","abstract":"Incidents like the #Pizzagate shooting signify one step in a long, dark trail of real world consequences caused by fake news. Experts explain this history and why these stories are so hard to ignore.","URL":"https://www.pbs.org/newshour/science/real-consequences-fake-news-stories-brain-cant-ignore","language":"en-us","issued":{"date-parts":[["2016",12,5]]},"accessed":{"date-parts":[["2019",1,31]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“The Very Real Consequences of Fake News Stories and Why Your Brain Can’t Ignore Them”). Not only Jennifer became mentally ill, but his family suffered dreadfully, the society got petrified and the manifestations of fake news successfully targeted the society.

A critical appraisal of the deliberated proposal requires thorough research to be further conducted to thoroughly asses the implications of fake news. Irrefutably, the rationale discourse gets jeopardize. It is noteworthy to mention that it is not only desecrating the families and people but also shaping their minds towards a false perception. Societies and institutions have progressed to honor the fabricated news because of an intricate rationale. Fake news is far easier to comprehend than true news. Furthermore, true news needs essential discourse and potential investigation to draw transparent conclusions. The social media platforms have made the users habitual of immediately adhering to the fallacious perceptions as it saves their time and effort. The bottom line is that fake news has the potential to endanger the lives of each member of the society and shape perceptions towards a fallacious dogma.

Works Cited

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Fighting_fake_news_-_workshop_report.Pdf. https://law.yale.edu/system/files/area/center/isp/documents/fighting_fake_news_-_workshop_report.pdf. Accessed 31 Jan. 2019.

"The Very Real Consequences of Fake News Stories and Why Your Brain Can't Ignore them." PBS NewsHour, 5 Dec. 2016, https://www.pbs.org/newshour/science/real-consequences-fake-news-stories-brain-cant-ignore.

Subject: Law and International Law

Pages: 2 Words: 600

Read

Thought Paper

[Name of the Writer]

[Name of the Institution]

Thought Paper

Introduction

There are several notions as to why people commit crimes. One of the theories is the rational choice theory that states that people do ponder about what crime they are going to perform and for what reasons; which means that their crime for instance robbery is not a deliberate crime, but there are many personal reasons behind it. The law-breakers according to rational choice perspective, weigh on their behavior before performing and keep in mind the advantages and disadvantages before committing the felony. The rational perspective of Clark and Cornish suits well for the causation of robberies or burglaries. According to this perspective, crimes are not committed by robbers only because they want to act criminally or for the sake of entertainment or fun. It is most certainly because they are in need of money for multiple reasons and that they are not able to see any other way to make a living, so they break the law. This paper believes that any crime such as robbery despite the reason should be punishable, however, reasons for committing the crime should be taken in consideration so to help the criminals and the society as a whole.

Discussion

Rational choice theory or perspective by Clark and Cornish propose that it is valuable to see felonious conduct as the consequence of the lawbreaker’s general rational decisions and choices and not as the outcome of socially and psychologically determined character to offend. Rational choice perspective offers basics for developing models of criminal conduct. Neuropsychological studies illustrate that neurobiological mechanisms are involved in our "rational choices." These Rational choices are grounded on several assumptions, for instance, individualism. Secondly, people are self-centered. Thirdly, people have to maximize their goals. Criminals usually think about themselves and the advancement of their individual goals. Some of the critical points of the rational theory are that human being is a sensible performer and they calculate before they perform any activity. Individuals have the free will to decide on any behavior, whether it be deviant of conforming to the law based on their calculations and reasons. Moreover, the vital component of their rational calculation comprises a cost and benefit analysis, for example, pain, pleasure or decadence. According to the theory, these choices or decisions can be controlled through individuals own imagination and thoughtfulness of the potential act, etc.

Many elements of rational choice perspective make it appropriate to serve as a criminological “metatheory” since rational choices of a person can describe diverse constituents; it is comprehensive enough to be applied to everyday life and crime circumstances as well. This theory outlook has delivered a structure which will help in organizing information and result in added general benefits (Newman, Clarke, 2016).

The primary purpose of the rational choice philosophy is to assist in preventing situational crime by reducing the opportunities that are directed at particular practices related to crimes rather than merely reacting against the criminals. Rational perspective is that these lawbreakers are more often short of money, do not have any employment or they have low paid occupations. Robbers are usually illiterate and lazy. These criminals other than for basic needs, break the law for drugs as more often they are addicted to drugs. The theory says that even law-abiding populations can commit a crime not for the reason that they will be looking for something particular from the victim's possessions or for the reason of getting cash for a long-term objective. Most robbers can start making an honest living only if their basic needs social or psychological needs are fulfilled.

In opposition with rational choice perspective, others argue that robbers or burglars are habitual of committing the crimes and they do not think before their deed and that they may be incompetent of reasoning. Law-breaking is the outcome of a conscious choice. According to opposed groups, these criminals will continue breaking the law, and therefore, the punishment should be the only and immediate reaction.

All these theories are noteworthy and applicable to some extent but, there needs to be more research and specific descriptions for every crime committed individually. The scope of research is quite extensive and open as there are numerous shortcoming in almost all the theories. Human perspectives and actions are complex, and every crime that happens usually have multiple reasons behind it, if these reasons are explored and a specific framework is developed for every individual crime, the current procedures may alter significantly, and many criminals might return to being law-abiding citizens. In my opinion, if not majority, a large chunk of robbers start their criminal activities based on lack of basic needs, individual or social circumstances and therefore, rather than punishment only, the reasons should be explored in order to benefit from them in devising a more better approach and make progress in controlling the grass-root behaviors that lead people to commit or start committing crimes such as robberies. If the state provides basic needs for the people, crime rates will fall drastically.

Conclusions

To conclude, no crime can be labeled as rational until and unless the criminal is proven medically to be of unsound mind. No excuse can be strong enough to justify such criminal activities. Robbing someone of their possessions is ultimately a crime no matter the reasons. However, despite having some deficiencies in the rational choice perspective, it can be used to devise a better theory or program that will help in controlling or lessening criminal behaviors especially related to robbers and burglars. These people might be facing some personal issues or having bad habits; theories like rational choice can help greatly to find the solutions for these problems and address them more efficiently and effectively. So far, advisory theories typically are narrowed to an inadequate range of variables derived from other contributing disciplines. A decision-making process concerning these behaviors need to stress the rational components in criminal conduct and needs clarifications to be precise to actual forms of misconduct. As the models are developed mainly for refining crime control strategies and related research they can only be labeled as good enough and not most suitable or satisfactory. Thus, these decision-making models should be used to construct good enough theories.

References

Newman, G., & Clarke, R. V. (2016). Rational choice and situational crime prevention: Theoretical foundations. Routledge.

Subject: Law and International Law

Pages: 3 Words: 900

Read

Thought Paper

College Victimization

Student’s Name

Institution

College Victimization

Introduction

Routine theory proves that college victimization can actually be affected and even prevented by lifestyle and routine activities. Many of the parents feel that their children are safe while at school, even though they may not like their school. There is a presumption that schools offer a safe and a better learning environment for all the students. This is not always the case. Many cases of victimizations are mentioned on a daily basis, especially among the college students. The main cause of the victimization issues is largely associated with the lifestyle and routine activities by the students. For instance, it is a fact that the students who like going out for drinks are more vulnerable to larceny than the rest of them. When one makes night outs a lifestyle, then he or she risks being victimized on various occasions. There are various ways that the victimization can be affected and even prevented.

The role of demographic aspects is significant in the cause of college victimization. For instance, the rate of victimization is seen to be higher for the minority racial groups than among the majority groups. There are many social events organized around the college. When such students from the minority groups attend the same, they are exposed to possible victimization. This is because they are considered vulnerable and weaker compared to the rest of the students. Normally, there are no rules restraining the interaction of the students. The majority students that are used to victimization take advantage of the small number of the minority students. Most of the minority students consider cooperating with the victimizers for the fear of the worst. Therefore, it could be possible to reduce the level of victimization by not giving the predators an opportunity (Cohen & Felson1979). This means that the minority groups could avoid attending such unnecessary gatherings that possibly increase the victimization chances. In addition, the minority groups could gather in larger groups while attending such events. Victimization comes from a small number of people but could destroy a whole good deal. By converging in larger groups, they could offer security to each other and scare way the potential victimizers.

Sex and lifestyle also play a major part in enhancing possible victimization on a student. Female students are considered to be weaker and more vulnerable to victimization such as larceny. Female are less likely to defend themselves when such issues occur. Consider a woman who has the lifestyle of going to a bar all by herself. Consider that she prefers going for the drinks night out all by herself and get back to the hostel on her own. This increases the chances of being robbed along the way. This kind of a lifestyle presents to the victimizers an easy target. In some cases, the victimizers may not even be ready or planning to victimize anybody. However, a drunken woman presents a soft spot where they could easily steal from her without any form of violence (Fisher et al, 1998). When such routine changes, then the victimizers will have no opportunity to steal from such a person. The change of routine could, therefore, reduce or increase the possibility of college victimization.

Most of the victimizers in college form groups to do their job. It is unlikely to find one person victimizing others. Most of the groups are formed where there are college social events such as fresher’s nights. On such events, many of the freshmen and women in college fall victims to the continuing students. Most of the events are held at night, increasing the chances of such cases going unnoticed. This is the routine in many colleges. The trend of victimization could be changed if the system effects some changes as well. For instance, if the number of night social events is reduced, there could be a reduction of venues for the perpetration of the criminal activity (Mustaine & Tewksbury1998). In addition, there could be a change to have most of the events held during the day rather than at night. This way, the victimizers will be more exposed and have limited ability to take on their fellow students.

Individuals from low-income families prefer simple ways of life while at college. This way, they tend to be more vulnerable to the victimizers. For instance, most of the students are unemployed and therefore prefer walking from one point to the other. This exposes them to the victimizers as they may walk any time of the night without considering the risk accorded to them. In addition, most of the victimizers compose of low-income families students. A change of the routine could change this trend. The low-income people tend to be lone people and therefore socialize with limitation for the fear of overspending in such peer groups. If one considers it important to walk in groups, the possibility of an attack could be reduced.

Conclusion

Demographic factors entail the various reasons why victimization exists in college. In the same way, a change in the respective factors presents a solution to the problem. Gender, race, turnover, and proximity to guardianship form some of the factors affecting the rate of victimization. A change in lifestyle could ridiculously reduce the levels of victimization. Female students could be safer in their rooms rather than walking to and from pubs on their own. In addition, adopting closer proximity to the guardian could also serve and a good measure to prevent such crimes. Reducing the rate of attendance to the social events at college plays a major role in reducing the victimization cases. Victimization is reduced by lowering the chances of becoming a victim and lowering the chances of creating an opportunity for the victimizers.

References

Cohen, L. E., & Felson, M. (1979). On estimating the social costs of national economic policy: A critical examination of the Brenner study. Social indicators research, 6(2), 251-259.

Fisher, B. S., Sloan, J. J., Cullen, F. T., & Lu, C. (1998). Crime in the ivory tower: The level and sources of student victimization. Criminology, 36(3), 671-710.

Mustaine, E. E., & Tewksbury, R. (1998). Predicting risks of larceny theft victimization: A routine activity analysis using refined lifestyle measures. Criminology, 36(4), 829-858.

Subject: Law and International Law

Pages: 3 Words: 900

Read

Thought Paper 4

Introduction

Crime aversion through design is a standout amongst the most mainstream urban arranging systems for enhancing wellbeing in urban areas. The real reason for place design is to stop potential criminals by altering urban situations. It depends on the urban design and ecological psychology conviction that human conduct can be impacted by the encompassing condition (Newman, 1976).

Place design is frequently used to remodel declining neighborhoods that experience the ill effects of crime. For instance, nearby governments in Korea have done urban recovery tasks to enhance the physical condition of low-ascent neighborhoods. Since most crumbled neighborhoods in Korea experience the ill effects of high crime rates, neighborhood reclamation extends commonly join place design to lessen crime and dread of crime and, in this way, enhance social maintainability for inhabitants. In any case, the viability of place design execution is as yet questioned.

In spite of the fact that a couple of studies have evaluated place design extends as far as physical action and dread of crime, the post-finishing impact of explicit place design measures are still inadequately examined. Additionally, most past examinations have assessed place design application at the area level in spite of the fact that place design measures are utilized in various areas inside an area. Also, few examinations have impartially estimated place design usage. Thusly, our examination planned to investigate how place design measures; for instance, shut circuit TV (CCTV), road lighting, straightforward fencing, network parks, and upkeep, affected inhabitants' physical movement levels and dread of crime by dispassionately estimating place design application and looking over occupants at the area level.

Crime Prevention through Environmental Design

Structures and network designs that supported regular reconnaissance, particularly by their own occupants, were basic for deflecting crime. Territoriality was additionally connected in urban arranging and design by Jacobs and in this manner by Newman. As indicated by this idea, a place with an affectionate interpersonal organization can create intentional network guardianship. A place that is persistently constrained by its own inhabitants, who share a feeling of network, can be more compelling than police implementation. Newman demanded that occupants' regional demeanor could go about as a viable hindrance to potential crimes and that a semi-open network space encompassed by private structures would be essential for creating territoriality.

Movement backing can be accomplished by designing a constructed domain or signage such that advances the expected utilization of an open space through supposed "safe exercises". The fundamental supposition of action support is that crime can be discouraged in spaces where an assortment of exercises constantly occur and draw in individuals. All around utilized avenues and clamoring walkways were more secure from brutal crimes than deserted spaces. Both common observation and territoriality can be accomplished by advancing more exercises in broad daylight spaces.

The aim behind access control is to keep a potential criminal out of the network by using genuine or representative boundaries. Newman's examination (Newman, 1976) found that a working with various break courses was dangerous; he consequently contended that making unmistakably characterized limits and a semi-private network spaces was essential for enhancing private security. His investigation did not concentrate on rural design, yet the prevalence of circular drives could likewise be clarified by Newman's concept of access control.

The place design idea of picture/upkeep could be followed to Philip Zimbardo's 1969 social trial and Wilson and Kelling's broken window hypothesis (Newman, 1976). In Zimbardo's analysis, deliberately harmed vehicles were deserted on urban roads to see how they were vandalized.

In unmaintained urban situations without any indications of possession, vandalism and other criminal conduct raised. Along these lines, to avoid crime, the two boulevards and properties ought to be kept up with the goal that a picture of thoughtfulness would be seen by a potential criminal. Physical incivilities, especially the real nearness of confusion related signals, adversely affected the view of crime-related issues.

These five ideas are interconnected, shaping the foundation of conventional place design procedures, which are executed through an assortment of down to earth neighborhood and design measures.

Expanding proof demonstrates the effect of place design measures or place design-related factors on recorded crimes and property estimations. Fabricated condition highlights, identified with faultless space, and a "transient" domain, identified with turmoil and territoriality, could clarify a noteworthy extent of neighborhood crimes.

Any physical risk is a basic factor for an individual's personal satisfaction; hence, dread of crime has turned out to be a standout amongst the most pertinent contemporary social issues. Dread of crime is not the same as real exploitation. It is abstract and social since individual dimensions of dread of potential exploitation fluctuate. For instance, significant research proof demonstrates that ladies are reliably bound to have a more elevated amount of dread of crime than men.

Dread of crime is a convoluted idea that can be watched and comprehended at the accompanying psychological dimensions: observation, comprehension, and conduct. As dread of crime can be by implication experienced and engendered through internet based life, the general population's dread of crime can be expanded by the broad communications. Dread of crime contains "a scope of emotional understandings of the social significance of crime and incivility implanted in the neighborhood setting". A precise estimation of dread of crime requires partitioning this multifaceted build into all the more effectively quantifiable subconcepts.

Conclusion

Stress over exploitation was estimated through occupants' accounted for worries about being victimized and attacked, having their vehicles stolen, and being explicitly badgering and assaulted. Seen hazard was estimated by getting some information about occupants' apparent wellbeing when strolling alone in a territory after sunset. These investigations show the significance of designing review surveys, which are basic to dispassionately and precisely measure people's dread of crime and to comprehend its association with psychosocial factors at different dimensions.

References

Newman, O. (1976). Design guidelines for creating defensible space.

Subject: Law and International Law

Pages: 3 Words: 900

Read

TITle Of Essay

Terrorism

Your Name (First M. Last)

Date

Terrorism

Terrorism is recognized as the one chronic issue as it immensely affects different regions of the world at extensive level. There are many events in the history which indicates that terrorism is not the new phenomenon and always existed in different forms. A proper understanding of the particular term of terrorism is essential to make a better interpretation of the practices and the security actions associated with this specific feature. It can rightly say that the prospect of terrorism is going through from different forms of transition. Today, the approach of the terrorism identifies as the different domain as compare to its practices in earlier times. It is one significant tactic to assess the form of terrorism in recent times referring to its connection with the former time-period ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"9QAorqCh","properties":{"formattedCitation":"(White, 2016)","plainCitation":"(White, 2016)","noteIndex":0},"citationItems":[{"id":566,"uris":["http://zotero.org/users/local/7Hi3kAOD/items/UZ58CZYG"],"uri":["http://zotero.org/users/local/7Hi3kAOD/items/UZ58CZYG"],"itemData":{"id":566,"type":"book","title":"Terrorism and Homeland Security","publisher":"Cengage Learning","URL":"https://books.google.com.pk/books?id=XINTCwAAQBAJ","ISBN":"978-1-305-63377-3","author":[{"family":"White","given":"J. R."}],"issued":{"date-parts":[["2016"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (White, 2016). Here the particular focus is to develop critical argument concerning the differences and similarities between the recent form of twenty-first-century terrorism and its former manifestations.

A proper comparison of the new and the previous practices referring to terrorism is possible with the critical observation of the events of violence that are ranked as the incidents of terrorism. Shifting definition of terrorism makes it complex to make inference about the one single domain regarding the idea of terrorism. It is difficult to present one single definition of terrorism because it ranked as the social construct which is explained by different individuals referring to the social and political realities ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"qaERPDhF","properties":{"formattedCitation":"(White, 2016)","plainCitation":"(White, 2016)","noteIndex":0},"citationItems":[{"id":566,"uris":["http://zotero.org/users/local/7Hi3kAOD/items/UZ58CZYG"],"uri":["http://zotero.org/users/local/7Hi3kAOD/items/UZ58CZYG"],"itemData":{"id":566,"type":"book","title":"Terrorism and Homeland Security","publisher":"Cengage Learning","URL":"https://books.google.com.pk/books?id=XINTCwAAQBAJ","ISBN":"978-1-305-63377-3","author":[{"family":"White","given":"J. R."}],"issued":{"date-parts":[["2016"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (White, 2016). The evolving definition of terrorism creates the difference between the existing and former indexes of the problem of terrorism.

The existing approach of terrorism is different from the previous perspectives referring to the aspect of ideology. This specific argument can better understand through the examples of current and previous events of violence. Originally, the term of terrorism is utilized to explain the actions of the French government relevant to the issue of capitalism. Today, the concept of terrorism is mostly linked with the various dynamics of nationalistic, revolutionary, ideological perspectives of religious groups active in different parts of the world. Changing the definition of terrorism with time ultimately influenced the elements of policy, behavior, and global opinion regarding this problem. The changing world of the twenty-first-century also influenced the main idea and practices of terrorism. Today, the issue of terrorism mainly recognized under the consideration of the ideologically driven Islamic extremist movement.

Transformation of the theoretical issues of terrorism over the years change the perspectives of twenty-first-century terrorism practices from its previous approaches. Many research studies indicate that in recent times, confusion about the term of terrorism negatively impacts the element of policy. The difference of the forms of the terrorism of twenty-first-century from its former implications can be explained as: “Many Western governments get caught in a semantic trap and fail to develop a cohesive policy against terrorism.” ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"W39SreAc","properties":{"formattedCitation":"(White, 2016)","plainCitation":"(White, 2016)","noteIndex":0},"citationItems":[{"id":566,"uris":["http://zotero.org/users/local/7Hi3kAOD/items/UZ58CZYG"],"uri":["http://zotero.org/users/local/7Hi3kAOD/items/UZ58CZYG"],"itemData":{"id":566,"type":"book","title":"Terrorism and Homeland Security","publisher":"Cengage Learning","URL":"https://books.google.com.pk/books?id=XINTCwAAQBAJ","ISBN":"978-1-305-63377-3","author":[{"family":"White","given":"J. R."}],"issued":{"date-parts":[["2016"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (White, 2016). It is perceived that the ambiguity regarding the actual term of terrorism creates problems to design and implement the proper planning and policies to address this problem effectively and efficiently. Involvement of the new stakeholders, motivations, purposes, and techniques of terrorism of today differ its sphere from the previous appearances. Adoption of the various forms of terrorism to create anarchy and violence is the similar facet for both the forms of twenty-first-century terrorism and the traditional phenomenon.

In conclusion, it is important to describe that the term of terrorism is one of the controversial concepts of the social sciences. It is enormously difficult to achieve a consensus regarding the idea of terrorism. Shifting meaning of the terrorism ultimately designate about the existing change in the forms of terrorism of twenty-first-century as compared to its former indices. This sort of difference eventually influences the opinions and policy formulations to deal with the problem of terrorism.

References

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY White, J. R. (2016). Terrorism and Homeland Security. Cengage Learning. Retrieved from https://books.google.com/books?id=XINTCwAAQBAJ

Subject: Law and International Law

Pages: 2 Words: 600

Read

To Be Decided

[Name of Student]

[Name of Professor]

[Name of Class]

[Day Month Year]

Exclusion of Evidence in a Trial

Introduction

In criminal proceedings, defendants and prosecutors may present evidence in support of their cases. It is very decisive in the case of the defendant. For example, if in a court of law, the evidence is excluded, then there would not be adequate incidental support to suggest guilt. This will put the defendant behind bars. The “exclusionary rule” impedes the prosecution from presenting evidence which was gathered illegally. This rule becomes applicable when evidence is collected in violation of the rights of the defendant against seizures and unlawful searches. Therefore, if an officer gathers evidence without a proper channel, the evidence would not be admissible at the trial.

The most important factor is admissibility of a piece of evidence in proceedings. It can be excluded in certain circumstance under the Police and Criminal Evidence Act 1984 and under the common law of Courts. Under section 78, the court can exclude evidence where it has significantly breached the PACE codes of practice. The exclusion will not be ordered where it affects the impartiality of the proceedings. Moreover, under 78, applications to exclude the evidence will be considered by the judge. The application ought to be made before the evidence is presented. The courts, however, constantly interpreting the rules, such as, to what extent the character of evidence matters in hearsay evidence. To exclude hearsay evidence, the court has a general discretion.

In historical perspective, the United States birthplace of the exclusion of evidence. With few exceptions, illegally obtained evidence would be excluded if they are obtained illegally in criminal cases (Debra Osborn). As it is viewed as the only source of individual rights from seizures and irrational searches guaranteed in the fourth amendment of the US constitution. The justification for this amendment was stated in terms of judicial integrity.

Reasons for Exclusion of Evidence in a Trial

In the case of Pembroke Dock, the defendants were accused with consuming and supplying beer while non-permitted hours at a registered club ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"eBNL4uXs","properties":{"formattedCitation":"(\\uc0\\u8220{}The Exclusion of Evidence in Criminal Cases, I\\uc0\\u8221{})","plainCitation":"(“The Exclusion of Evidence in Criminal Cases, I”)","noteIndex":0},"citationItems":[{"id":360,"uris":["http://zotero.org/users/local/orkqtrjP/items/Q5RCXKKJ"],"uri":["http://zotero.org/users/local/orkqtrjP/items/Q5RCXKKJ"],"itemData":{"id":360,"type":"article-journal","title":"The Exclusion of Evidence in Criminal Cases, I","container-title":"The Journal of Criminal Law","page":"48-62","volume":"6","issue":"1","source":"SAGE Journals","DOI":"10.1177/002201834200600105","ISSN":"0022-0183","journalAbbreviation":"The Journal of Criminal Law","language":"en","issued":{"date-parts":[["1942",1,1]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“The Exclusion of Evidence in Criminal Cases, I”). The only evidence the prosecution was a police constable who assumed that he saw the offenses were being committed. After that he went to the court; he was invited inside for inspection; before the invitation, he had doubted whether he crossed the threshold or not? From the open doorway, the constable professed that one of the defendants was drinking from a glass and the content of the glass was beer. The magistrates had decided that there was no case to answer, and the evidence was not acceptable as there were no search warrants to apply.

When an objection founded on lack of notice raised at trial, it may be determined by the Trial Chamber. Moreover, the Chamber determine whether the objection was not on time as to contemplate that the burden of proof has been moved from the prosecution to the Defence. By being so, the trial chamber looks at the factors, for example, whether a reasonable explanation has been provided for its failure to raise objection while providing evidence. Moreover, whether the objections were raised as soon as possible?

Limitation of exclusion of evidence came in 1984 verdict of Nix v. William (Debra Osborn). The Court, in this case, found that an inevitable discovery must be functional in cases where it would be convicted without constitutional violations. The inroads to the rule were made in another substantial case of Leon v. United State. The Court, in this case, found that the police officer who had executed the search in judicious reliance on a warrant was seen faulty due to the error made by Magistrate.

Andrew Choo has suggested three possible rationales: repute, compensation, and deterrence behind the exclusion of evidence. In this regard, Zuckerman preferred three frameworks: the remedial approach, legitimacy theory, and deterrent theory. While scholarships explain the justifications in a relatively dissimilar way, the rules are not divergent and can be integrated in a different way.

The principle of finding evidence on illegality is, however, no evidence in any case and is very much wide. In addition, if it is applied, most of the law and practice of evidence would get upset. As per the Royal Commission on Police Powers and Procedure, and it always been practiced by the police for probing the places where a person has been arrested with a warrant. While if the occupier denies permission, the police may proceed without his permission. The courts, however, will keep on condemning this act by considering the police as trespassers. Though, the courts have never been held that the evidence that they found was not permissible.

The problem of Police Misconduct

To address the problem of police misconduct in collecting evidence, there are three important ways which would not involve the effectiveness of exclusionary rules and exclusion of evidence ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"W1uuAvhQ","properties":{"formattedCitation":"(Ho)","plainCitation":"(Ho)","noteIndex":0},"citationItems":[{"id":366,"uris":["http://zotero.org/users/local/orkqtrjP/items/B7T9UMXA"],"uri":["http://zotero.org/users/local/orkqtrjP/items/B7T9UMXA"],"itemData":{"id":366,"type":"report","title":"Exclusion of Wrongfully Obtained Evidence: A Comparative Analysis","publisher":"Social Science Research Network","publisher-place":"Rochester, NY","genre":"SSRN Scholarly Paper","source":"papers.ssrn.com","event-place":"Rochester, NY","abstract":"Most legal systems contain rules for the exclusion of wrongfully obtained evidence. Clarity is gained by separating three lines of objection to reliance on such evidence in the legal determination of guilt. Each of them is directed at a different institutional actor. The first objection is to the manner in which the police had obtained the evidence; the second is to the use of the evidence by the prosecution to prove its case against the accused or to the inclusion of the evidence in the trial dossier; and the third is to the trial court’s reliance on the evidence in finding the accused guilty as charged or, where provision of reasons is required, in supporting that finding. Different theories or rationales for the exclusion of wrongfully obtained evidence have clustered around these three lines of objection. It is usual to find more than one theory or rationale at work in shaping the law. The theoretical exploration is followed by an analysis of legal forms and techniques for exclusion, and a discussion of the major factors that have been treated as relevant in deliberation on exclusion.","URL":"https://papers.ssrn.com/abstract=3032237","number":"ID 3032237","shortTitle":"Exclusion of Wrongfully Obtained Evidence","language":"en","author":[{"family":"Ho","given":"H. L."}],"issued":{"date-parts":[["2017",9,4]]},"accessed":{"date-parts":[["2019",4,10]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Ho). To institute criminal action or disciplinary against the errant officer is the direct way of handling a specific instance. In this regard, the provision of clearer investigative rules and better training are the prophylactic measures. In addition, personal remedies can be obtained such as financial compensation by the state in spheres of public law and granting of damages under the law of torts.

Admissibility of Criminal Evidence

The procedures that govern the admissibility of evidence in criminal cases are rules of the law, and hence after the verdict on accusation there is right of criminal appeal. Usually, objection to criminal evidence is not based on technicalities, while the appeal would not necessarily be succeeded.

When an evidence is wrongfully brought before the Court, in such type of cases there is an appeal of right, though the trial judge would not be answerable for the admission of evidence. In such a course of action, the appeal will depend on the facts. In case of R. v. Wright in 1935, a prosecution witness made an incidental remark that the photographs of the prisoner were seen by him in the Rogues Gallery at Scotland Yard ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"p4YrYKir","properties":{"formattedCitation":"(\\uc0\\u8220{}The Exclusion of Evidence in Criminal Cases, I\\uc0\\u8221{})","plainCitation":"(“The Exclusion of Evidence in Criminal Cases, I”)","noteIndex":0},"citationItems":[{"id":360,"uris":["http://zotero.org/users/local/orkqtrjP/items/Q5RCXKKJ"],"uri":["http://zotero.org/users/local/orkqtrjP/items/Q5RCXKKJ"],"itemData":{"id":360,"type":"article-journal","title":"The Exclusion of Evidence in Criminal Cases, I","container-title":"The Journal of Criminal Law","page":"48-62","volume":"6","issue":"1","source":"SAGE Journals","DOI":"10.1177/002201834200600105","ISSN":"0022-0183","journalAbbreviation":"The Journal of Criminal Law","language":"en","issued":{"date-parts":[["1942",1,1]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“The Exclusion of Evidence in Criminal Cases, I”). To this statement, no further references were made by the council and the Recorder.

The Principles of Exclusion in Criminal Cases

This may be viewed as irrational to a person who has no awareness regarding the difficulties integral in the trial. Nonetheless, the lawyers agree that their rules of evidence usually effective on withholding testimony. The central purpose is that such evidence might be specified undue weight or misleading. Admitting evidence would possibly overshadow its logical relevance in practice. Particularly for the reason, the 1938 Evidence Act is confined to reforms by the way of admissibility of evidence. Moreover, its application to the criminal proceeding, minor reforms were done only with attested documental proof.

With no denying the fact the admissibility of evidence is concerned with its credibility. For example, according to the rules of evidence, a witness might be allowed to giver definite testimony, but this will be inevitably be trusted. In addition, there is a difference between relevance and admissibility in various matters that are logically material. The efforts made by Sir James Stephen was to provide grounds to the rules of admissibility of evidence. Stephen by excluding much of its relevance discussed four rules of evidence exclusively. The principle of exclusion has constantly been mentioned in the Courts, but regrettably, its discussions have failed to make it clearer. The principles always try to modify the rules of exclusion. However, it is, not surprising to use res gets as the last option.

Critical Analysis

The severe costs of the exclusion of evidence are apparent. The fact that excludes evidence would possibly persuade a jury beyond a sensible doubt of the defendant’s culpability is not applicable to the matter of exclusion. Exclusion of evidence will continue to level criticism if it is present. Justice Cardozo, in this regard, condemned the rule by allowing “the criminal to go free because the constable has blundered” (Debra Osborn). On the other hand, it has been called a departure from common sense and less strong system for doing justice. In the United States, is inadmissible to obtain illegal evidence in criminal proceedings. While the rationale behind the rule is to discourage the investigative authorities from their interference of an individual's constitutional rights. It is, however, punitive in nature, therefore, there are no considerations to the genuine consequences of its application in any case.

Conclusion

Exclusion of evidence in genuine cases denies justice and sacrifice truth in the search of ideas. As it deters police from misconduct, therefore, it is superior, or it may abide police by the law. In addition, it might be prejudicial to permit the prosecution to use the evidence. While the exclusion of evidence has been represented as a source of upholding the rule of law. In legal perspective, evidence that was obtained illegally varies in different cases. A common perspective is having a balance among the competing considerations. Such considerations include the status of evidence in determining the gravity of the wrong committed by police and the criminal charges in obtaining the truth.

Works Cited

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Exclusion of Evidence » ICTR/ICTY/IRMCT Case Law Database. http://cld.irmct.org/notions/show/326/exclusion-of-evidence#. Accessed 10 Apr. 2019.

Ho, H. L. Exclusion of Wrongfully Obtained Evidence: A Comparative Analysis. SSRN Scholarly Paper, ID 3032237, Social Science Research Network, 4 Sept. 2017. papers.ssrn.com, https://papers.ssrn.com/abstract=3032237.

“The Exclusion of Evidence in Criminal Cases, I.” The Journal of Criminal Law, vol. 6, no. 1, Jan. 1942, pp. 48–62. SAGE Journals, doi:10.1177/002201834200600105.

Subject: Law and International Law

Pages: 5 Words: 1500

Read

To What Extent Is The Definition Of 'land' Fit For Purpose?

To what extent is the definition of ‘land’ fit for purpose?

[Author Name(s), First M. Last, Omit Titles and Degrees]

[Institutional Affiliation(s)]

Author Note

To what extent is the definition of ‘land’ fit for purpose?

Subterranean Zones

The land-dwelling subterranean regions comprise of underground or hidden zones apparent in caves, cracks, crevices, etc. It constitutes almost 4 percent of the world's rock projections ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"rkPUxmJx","properties":{"formattedCitation":"(Gibert & Deharveng, 2002)","plainCitation":"(Gibert & Deharveng, 2002)","noteIndex":0},"citationItems":[{"id":188,"uris":["http://zotero.org/users/local/2y0xTiQs/items/D5KP3LPA"],"uri":["http://zotero.org/users/local/2y0xTiQs/items/D5KP3LPA"],"itemData":{"id":188,"type":"article-journal","abstract":"That biodiversity varies among habitats is a basic tenet of ecology. Many hypotheses have been advanced to explain these variations: ecosystem stability and com","container-title":"BioScience","DOI":"10.1641/0006-3568(2002)052[0473:SEATFB]2.0.CO;2","ISSN":"0006-3568","issue":"6","journalAbbreviation":"BioScience","language":"en","page":"473-481","source":"academic.oup.com","title":"Subterranean Ecosystems: A Truncated Functional BiodiversityThis article emphasizes the truncated nature of subterranean biodiversity at both the bottom (no primary producers) and the top (very few strict predators) of food webs and discusses the implications of this truncation both from functional and evolutionary perspectives","title-short":"Subterranean Ecosystems","volume":"52","author":[{"family":"Gibert","given":"Janine"},{"family":"Deharveng","given":"Louis"}],"issued":{"date-parts":[["2002",6,1]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Gibert & Deharveng, 2002). The earth's subterranean region depicts the three-dimensional implication of the land where the definition of land under the act (1925) explains a simple two-dimensional approach which could not satisfy the complete meaning of land.

According to the English Law, an owner of a land is authorized to a substantial underlying soil condensed in two dimensional directs of surface boundaries of the land. Although the standard definition of land by-law includes the minerals and the inorganic elements in the ground such as stones, clay, sand, pebbles, and gravel are part of realty and considered as the property of the surface landlord (Butt, 2010). It also explains the legal possession of hidden or concealed objects within the surface of the land. However, the definition of land proposed by the law could not fit for the objects that are laid on or resting on the ground and are not embedded or hidden within the surface ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"UQuEW94z","properties":{"formattedCitation":"(Gray & Gray, 2007)","plainCitation":"(Gray & Gray, 2007)","noteIndex":0},"citationItems":[{"id":186,"uris":["http://zotero.org/users/local/2y0xTiQs/items/SMTN46AT"],"uri":["http://zotero.org/users/local/2y0xTiQs/items/SMTN46AT"],"itemData":{"id":186,"type":"book","abstract":"Gray and Gray's Land Law discusses all the core topics covered on undergraduate courses in an appropriate level of detail, and brings the subject to life through critical analysis and a contextual approach that explores the social, political and economic significance of land law.The book adopts a user-friendly approach that makes use of self-test questions, diagrams and summaries to emphasize key issues and illuminate areas of difficulty or controversy. Further reading is also included at the end of each chapter. Students seeking sophisticated analysis within a manageable length and an accessible format should look no further than Land Law for clear guidance from the leading authorities in the field.","ISBN":"978-0-19-921378-8","language":"en","note":"Google-Books-ID: toRIsFTaHVkC","number-of-pages":"631","publisher":"Oxford University Press","source":"Google Books","title":"Land Law","author":[{"family":"Gray","given":"Kevin J."},{"family":"Gray","given":"Susan Francis"}],"issued":{"date-parts":[["2007"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Gray & Gray, 2007).

According to ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"xGDOeYsr","properties":{"formattedCitation":"(Stacey, 2011)","plainCitation":"(Stacey, 2011)","dontUpdate":true,"noteIndex":0},"citationItems":[{"id":195,"uris":["http://zotero.org/users/local/2y0xTiQs/items/C329SCHK"],"uri":["http://zotero.org/users/local/2y0xTiQs/items/C329SCHK"],"itemData":{"id":195,"type":"article-journal","container-title":"Aberdeen Student Law Review","journalAbbreviation":"Aberdeen Student L. Rev.","page":"124","title":"Bocardo SA v Star Energy UK Onshore Ltd and Another","volume":"2","author":[{"family":"Stacey","given":"Calum"}],"issued":{"date-parts":[["2011"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Stacey (2011), the proposed maxim of land, "the person who owns the land owns everything reaching up to the very heavens and down to the depths of the earth" depicts the three-dimensional image of the land but is far away from the reality. Due to this reason, the regulatory bodies were willing to redefine the maxim as a considerable indicator of three-dimensional possession of the land. Moreover, it is also against the Treasure Law (1996) and considered as a crime if a person did not report a related discovery within fourteen days of their finding ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"hRCRTJdC","properties":{"formattedCitation":"(Howell, 2002)","plainCitation":"(Howell, 2002)","noteIndex":0},"citationItems":[{"id":197,"uris":["http://zotero.org/users/local/2y0xTiQs/items/GMEAWX55"],"uri":["http://zotero.org/users/local/2y0xTiQs/items/GMEAWX55"],"itemData":{"id":197,"type":"article-journal","container-title":"Northern Ireland Legal Quarterly","journalAbbreviation":"N. Ir. Legal Q.","page":"268","title":"Subterranean Land Law: Rights Below the Surface of Land","title-short":"Subterranean Land Law","volume":"53","author":[{"family":"Howell","given":"Jean"}],"issued":{"date-parts":[["2002"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Howell, 2002). The inaccuracy of the maxim is further demonstrated as the ownership of the reserves of coal and petroleum is entrusted in the coal ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"sXYHherP","properties":{"formattedCitation":"(\\uc0\\u8220{}Coal Industry Act 1994,\\uc0\\u8221{} n.d.)","plainCitation":"(“Coal Industry Act 1994,” n.d.)","noteIndex":0},"citationItems":[{"id":201,"uris":["http://zotero.org/users/local/2y0xTiQs/items/WRYARPX9"],"uri":["http://zotero.org/users/local/2y0xTiQs/items/WRYARPX9"],"itemData":{"id":201,"type":"webpage","title":"Coal Industry Act 1994","URL":"http://www.legislation.gov.uk/ukpga/1994/21/contents","accessed":{"date-parts":[["2019",12,11]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Coal Industry Act 1994,” n.d.) and petroleum authorities respectively.

Fixtures/Chattels

Another way the present definition can be seen as not fit for purpose is considering the elements of fixtures and chattels. Fixtures are defined as tangible property that is affixed to the original possession of land legally. It is considered as part of the original property or land. However, chattels are treated as a possession which is not attached to the real property and is not transferred to the buyer in case land is purchased by another entity (Luther, 2004).

Fixtures are of great importance in determining the ownership of the object for taxation purposes. In a normal transaction or a contract, the parties can decide the possession of fixtures which demonstrate that fixtures could not fit the general definition of land ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"o2m88BZt","properties":{"formattedCitation":"(Clarke & Greer, 2012)","plainCitation":"(Clarke & Greer, 2012)","noteIndex":0},"citationItems":[{"id":206,"uris":["http://zotero.org/users/local/2y0xTiQs/items/KFS735GD"],"uri":["http://zotero.org/users/local/2y0xTiQs/items/KFS735GD"],"itemData":{"id":206,"type":"book","abstract":"With a modern, student-friendly writing style, Land Law Directions excels in providing engaging and straightforward explanations of even the most difficult concepts. Case summaries, photographs, and examples are used throughout to provide real-life context and clarify abstract ideas, while diagrams and definitions ensure the text is easy to follow and that key points are understood. With extensive experience teaching undergraduates, the authors provide a full range of resources designed to help build upon and further your understanding, including thinking points, end of chapter questions and tips on linking topics together. A final chapter pulls together key details from each chapter, showing how topics link together and apply to a fictional piece of land. An additional separate chapter focuses on preparing for exams, offering advice on approaching assessment questions and revision technique. Land Law Directions innovative features, easy-to-read style and practical advice make this the ideal all-round textbook to prepare you for success in both exams and the workplace. This book is also accompanied by an extensive Online Resource Centre (www.oxfordtextbooks.co.uk/orc/clarke_directions3e/) which includes the following features: - additional topics for further study - revision podcasts - multiple choice questions - interactive glossary of key land law terminology - suggested approaches to the end of chapter questions in the text - updates to the law - useful weblinks","ISBN":"978-0-19-969928-5","language":"en","note":"Google-Books-ID: 43ZTV0ClTBEC","number-of-pages":"510","publisher":"OUP Oxford","source":"Google Books","title":"Land Law Directions","author":[{"family":"Clarke","given":"Sandra"},{"family":"Greer","given":"Sarah"}],"issued":{"date-parts":[["2012",5,17]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Clarke & Greer, 2012). Yet again, an old maxim states, ‘whatever is fixed to the land becomes part of it’, which explains fixtures generically but contradicts with the definition of land proposed by the Law of Property Act (1925). It is imperative to understand the classification of fixtures and chattels.

In accordance with the law of fixtures, the old rule explains that any property either tangible or intangible that is fixed to the surface becomes the property of the landlord along with the legal implications and cannot be separated from the owner without their consent ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"rPmJ6yKH","properties":{"formattedCitation":"(Keach, n.d.)","plainCitation":"(Keach, n.d.)","noteIndex":0},"citationItems":[{"id":211,"uris":["http://zotero.org/users/local/2y0xTiQs/items/9MG5JIGA"],"uri":["http://zotero.org/users/local/2y0xTiQs/items/9MG5JIGA"],"itemData":{"id":211,"type":"article-journal","language":"en","page":"53","source":"Zotero","title":"The Law of Fixtures in New York","author":[{"family":"Keach","given":"Nelson Lester"}]}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Keach, n.d.). However, the modern rule describes the fixture property as chattels that are attached to the land or landlord (Horowitz, 1952). Moreover, some researchers rely on the decision making and differentiate them on the basis of the terms i.e. removable and non-removable fixtures. This has reduced the vagueness in their classification and applies particular case law supported by the decisions based on facts rather than following a decided standard. There are four tests proposed by the law that determines either the chattel is a fixture property or not.

References

ADDIN ZOTERO_BIBL {"uncited":[["http://zotero.org/users/local/2y0xTiQs/items/TBAJB69Q"],["http://zotero.org/users/local/2y0xTiQs/items/D2QAZJWS"],["http://zotero.org/users/local/2y0xTiQs/items/ZM7YJIVN"],["http://zotero.org/users/local/2y0xTiQs/items/D36Q9WNJ"]],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Butt, P. (2010). Land law. Thomson Reuters.

Clarke, S., & Greer, S. (2012). Land Law Directions. OUP Oxford.

Coal Industry Act 1994. (n.d.). Retrieved December 11, 2019, from http://www.legislation.gov.uk/ukpga/1994/21/contents

Gibert, J., & Deharveng, L. (2002). Subterranean Ecosystems: A Truncated Functional BiodiversityThis article emphasizes the truncated nature of subterranean biodiversity at both the bottom (no primary producers) and the top (very few strict predators) of food webs and discusses the implications of this truncation both from functional and evolutionary perspectives. BioScience, 52(6), 473–481. https://doi.org/10.1641/0006-3568(2002)052[0473:SEATFB]2.0.CO;2

Gray, K. J., & Gray, S. F. (2007). Land Law. Oxford University Press.

Howell, J. (2002). Subterranean Land Law: Rights Below the Surface of Land. Northern Ireland Legal Quarterly, 53, 268.

Keach, N. L. (n.d.). The Law of Fixtures in New York. 53.

Luther, P. (2004). Fixtures and Chattels: A Question of More or Less... Oxford Journal of Legal Studies, 24(4), 597–618. Retrieved from JSTOR.

Stacey, C. (2011). Bocardo SA v Star Energy UK Onshore Ltd and Another. Aberdeen Student Law Review, 2, 124.

Horowitz, H. W. (1952). The Law of Fixtures in California--A Critical Analysis. S. Cal. L. Rev., 26, 21

Subject: Law and International Law

Pages: 2 Words: 600

Read

Transnational Commercial Law- 01

The first concern that arises during the formation of a transnational agreement is the forum to be chosen to resolve the disputes between the two or more contracting parties. The second concern is to determine that if the validity, interpretation and performance of the law governing. Pre-selection of the forum and the law enables the parties to know the law that is to be applied in case of any dispute among them. Today, the contracting parties, particularly the ones entering into transnational contracts, make their agreements in written forms that specifically explain the rights and obligations of each party under that particular agreement. However, it does not mean the clause concerning the choice of law is dispensed primarily due to the fact that the rights and obligations, no matter how explanatory they are in their written form, cannot be interpreted in isolation. The chosen law will responsibly explain to the parties the effect and validity of these rights and regulations, and the forum, such as courts or arbitral tribunals, opted by the contracting parties exhibits the fact that the clause is applied and upheld.

Choice of law clause can vary depending upon that if the contract is being made between enterprises or if it is a government contract. The government contracts raise the questions of service of process and sovereign immunity. It also precludes the submission to a particular court or tribunal system as well as the choice of a particular law. In this regard, government or public trade agreements are not much messy when it comes to the point of dispute between the contracting parties. However, the private contracts being made between two international companies or enterprises are rather difficult to handle. Private trade agreements include business contracts for construction work, for services, for the acquisition of business enterprises, for the technology transfer, and for the use or sale of goods.

The Anglo-American Approach

The precedent in the U.K cases points towards the free choice of law governing the transactions of the contracting parties. In a case in 1939, went so far in deciding the free choice of law clause for the contracting parties that a law of a particular state can be chosen even when it is not connected with the agreement. As per the facts of the case, the goods were to be transferred from Newfoundland to New York. The payment was to be made, via bill of lading in the Newfoundland but it was decided in the agreement that the English law will be applicable on the contract. The issue in the case was that if an exception clause in the bill was valid or not. This clause exempts the carrier from the law. The Hague Rules have been enacted into the U.S. Carriage of Goods by Sea Act 1936 and the Newfoundland Carriage of Goods by Sea Act 1932, which are a codification of rules and regulations applied on the bill. According to the Hague Rules, minimum standards of liability are to be imposed on the goods being carried through the sea. However, all those clauses are void that exempt the carrier from any liability beyond the minimum standards. As a matter of fact, every legal system in the world has embraced the Hague Rules.

Therefore, as per the U.S. Act 1936 and Newfoundland Act 1932, the exemption clause concerning the bill would be void. However, the English law was to govern, as held by the Judicial Committee of the Privy Council. Thus, the U.S. Act of 1936 was applied. It was applicable to the shipping made to the U.K. only. For this, the court declared the exception clause valid. However, this decision put to an interesting situation where it was clear that a state that has adopted Hague Rules could escape its application while sending a shipment to another state also adopting them. It was a regrettable decision and exhibited the extreme taken by the court on choice of law. Moreover, English law followed the precedent despite the fact that the decision of the Judicial Committee of the Privy Council is not binding.

Under the American law, the situation is not that extreme. Unlike English law, the American law has not favored the idea the implied or expressed intention of the parties play any role in context of the choice of law. As per the most recent advancements in the law, i.e., the Restatement (Second) of the Conflict of Laws s.187 (1971) and the Uniform Commercial Code s1-105 (1), it has been cleared that the parties must choose the legal system of the state possessing reasonable association with the transaction to govern their contractual obligations. The Restatement applies to the interstate contracts but it will be applied on the transnational contracts as well. The Conflict of Laws, on the other hand, states rules covering both interstate and transnational contracts. For this reason, the United States law has been finding a reasonable connection between the contracting parties, the contractual obligations, and the state law to govern the transaction. For most of the part, the difference is not must significant but in a few particular cases, submitting to arbitration or a jurisdiction connects the transaction to a legal system. However, the contracting parties of the East-West trade submit their disputes to the Sweden arbitration and the Sweden law is applied despite the fact that there is no connection between the state and the transaction.

More importantly, the question concerning that if a connection must prevail among the contracting parties, the contractual obligations, and the governing law is academic in context. As a general matter of facts, most of the parties choose a law that is associated with the contracting parties, the contract and/or the court system chosen for handling the disputes in the future. It gives rise to another question that how substantial this association must be. For instance, is the fact that the financing or insuring of a transaction has been done in a particular state causes a significant connection? In the 1939 case of Vita Food, it was cleared that underwriters making the insurance were more likely to be English therefore it developed a connection.

The United States has evolved with a proper law of contract favoring the fact that implied or expressed intentions of the parties determine the answer to the question of choice of law for their connection with the contractual obligations the English law has been a little flexible to the law to which the transaction is most significantly associated. For this reason, this has not been made cleared that the parties, with expressed clauses, cannot escape the mandatory provisions of the legal system with which the transaction has a significant association. However, it does not mean that the English law is to be surrendering to the objective proper law, which is to an extent so-called. In this regard, the decision of the 1968 case titled Tzortzis vs Monark Line, A/B, is of considerable importance. In this case, it was held that contract for sale of a ship that had provided for arbitration in London was to be governed by the English Law despite the fact that they had clearly chose the Sweden law to govern their transaction. The Draft United Kingdom-United States Convention on Reciprocal and Enforcement of Judgments in Civil Matters also supports the application of law to which the transaction is most closely related despite having an expressed choice of law, in case of evasion of its mandatory provisions.

The effect of the provision 8 of the Convention, in this regard, is that any arbitration or court where the judgments is to enforced or recognized, at the defendant’s request, may refuse to enforce or recognize a judgment applying to the chosen law, only under the circumstances which would require application of its own law primarily due to the fact that it has the most significant association with that particular transaction. Thus, an English court that applied the English law on a transaction because the contracting parties had expressly chosen it despite the fact that the English law was most substantially connected to it, and thus, had avoided the application of the mandatory provisions of the Securities Exchange Act 1934, a court in the United States, under the umbrella of the Convention, would be entitled to enforce or recognize the English judgment on request of the defendant.

The European Community Approach

For most of the parts, Europe has conventionally accepted the autonomy of the contracting parties choosing the law to govern their transaction. However, this acceptance has not been without a debate in the context that if planned economy influences the choice of law made by the parties. It is a matter of concern primarily due to the fact that the shift towards state ownership from a laissez faire economy in the East with a planned and mixed economy everywhere else, except for the United States, was bound to affect, one way or another, the autonomy of the choice of the contracting parties about the law to govern their transactions. However, the evidence points in the other direction. The United States successfully adopted the law of the state on formation of the contracts. State enterprises in the Soviet Union, and Eastern Europe have been willing to submit their contracts to a law that is not connected to the transaction.

The World Bank consulted the references to decided cases to analyze the existing trends within its resourceful and well informed atmosphere, and came to the conclusion that the autonomy of the parties still exists. The Article 2 of the Hague Convention on the Law Applicable to the Sales of Goods Act 1955 expresses complete party autonomy. Article 3 and 4 of the Draft Convention on the Law Applicable to the Contractual Obligations by the European Community also provide that the contracting parties either expressly or impliedly choose the law applicable to a transaction. The law closely related to the transaction is applicable only one there is a lack of choice by the parties. Moreover, the public policy corrective has extensively been applied to contract cases; it excludes the application of normally governing laws. It is further evident that the influence of fraude a la loi, the French concept preventing the evasion of mandatory provisions due to the chosen law, on the application of law on international commercial agreements is considerable, particularly in the context of private international law. Both of the English and French concepts are incomparable and bound to have effect in the United States and Europe. However, it is more difficult to make the impact in the United States due to the fact that the state and federal courts have never wholeheartedly supported the notion of free choice for the contracting parties to choose the law to govern their contractual obligations. The only support if finds vests in the increasing application of international guidelines and international standard of conduct to the transfer of technology and the transnational corporations.

The Australian Approach to the Choice of Law Clauses

In the case titled John Kaldor Fabricmaker Pty Ltd vs. Mithcell Cotts Freight Pty Ltd, the Supreme Court of the New South Wales was to decide that, while the matter of dispute was arbitrated in England, if it must stay proceedings in the New South Wales. Under s.43 of the Insurance Contract Act 1984, the arbitration clause would have been invalid if the Australian law was to govern the relevant insurance. Moreover, the same provision also requires the Australian courts to ignore the expressed choice of law in an insurance contract specifically if the contracting parties have chosen the English law to govern their transaction. However, the court completed an extensive study of the leading cases and determined that the correct procedure to ascertain the proper law of the contract. The court decided that it is clear that the contracting parties had an inferred intention of choosing the law of England as the governing law. For this reason, the local proceedings stayed and thus the arbitration clause was valid.

Brownie, J., endorsed the ‘three sub-rule’ approach of the proper law of contract as follows:

Rule 180: The term proper law of contract is the system of law that is chosen by the contracting parties to govern their transaction. If their intention for the choice of law is not expressed or implied, the law closest to the transaction must be applied.

Sub-rule 1: the expressed intention of the contracting parties determines the proper law of contract.

Sub-rule 2: if the intention is not expressed, the intention must be inferred from the nature and terms of the contract. The inferred intention will determine the proper law of contract.

Sub-rule 3: if the intention of the contracting parties is neither expressed nor implied in nature, then the law closest to the transaction will be applied as the proper law of contract.

Most of the academic debate has been carried around the sub-rule 2. In the case mentioned above, the Supreme Court of South Wales examined the leading cases and concluded that the proper law of contract must be determined on the subjective view, i.e., via the inferred intention of the parties entering into the contract, where the inference can be drawn. The court further declared that if the situation is otherwise, only then the parties must go to the courts for imputing on them the proper law of contract, i.e., the one that is closest to the transaction in nature. The arbitration itself has to be governed by the English law. For this reason, if a contract has the clause of consulting arbitration of a particular country in the case of a dispute, then it strongly indicates that the law of that country would be the proper law of contract. However, the circumstances of the case must also be considered. Other indicators include the residence of the parties, the subject matter and nature of the contract, a connection with a preceding transaction, the use of a particular language, the currency in which the payment is to be made, the form of documents involved in the transaction, and the legal terminology used in the written agreement.

Bibliography

A. LOWENFELD, INTERNATIONAL PRIVATE TRADE § 4.22 (1975).

Boissevain v. Weil, [1949] 1 K.B. 482 (C.A.) per Denning, L.J.

Dicey, A.V., Morris, J.H.C. and Collins, L., 1987. On The Conflict of Laws. 11. Auflage, London.

G. DELAUME, TRANSNATIONAL CONTRACTS, vol. 1, § 1.01, and generally §§ 4.01-4.06 (1976)

J. BEALE, THE CONFLICT OF LAWS 1079-80 (1935); E. Gerli & Co. v. Cunard S.S. Co., 48 F.2d 115 (2d Cir. 1931).

John Kaldor Fabricmaker Pty Ltd vs. Mithcell Cotts Freight Pty Ltd (1989) 90 A.L.R. 224

Tzortzis vs Monark Line, A/B [1968] 1 W.L.R. 406.

Vita Food Products vs. Unus Shipping Co. [1939] A.C. 277.

Zaphiriou, An International Code of Conduct on Transfer of Technology, 26 INT'L & COMP. L. Q. 210 (1977).

Subject: Law and International Law

Pages: 8 Words: 2400