Legal System Of Society Research Articles

Scales of justice: law, American Indian treaty rights and the political construction of scale

The organization of political scale has served to facilitate the power of the dominant society to control, exclude and marginalize indigenous populations. This paper examines how geographical scale has shaped the historical and contemporary geography of indigenous peoples in the United States. More specifically, discussion will center upon the importance of scale in shaping natural resource conflicts between American Indians and state governments. Using the case of the Wisconsin Ojibwe treaty rights conflict, this study shows how scale informed the historical development of an exclusionary state natural resource policy and the state's legal effort to protect its monopoly over policy making during a 17 year court case over off-reservation hunting and fishing treaty rights. At the same time, Ojibwe Indians sought to use the dominant society's legal system to gain recognition of their hunting and fishing treaty rights and to alter the existing scale organization of power by decentralizing natural resource decision-making and creating a resource co-management regime. This paper shows how both the state and the tribes were active producers of space and scale and how attempts to restructure geographical scale represent attempts to restructure existing power relations. Although geographical scale and power relations are never fixed and are subject to contestation, this paper shows that the ability of marginalized populations to reshape scales of power is limited by the persistence of assimilationist attitudes and normative assumptions about the scalar organization of political life.

Mental Health and the Law

Mental health issues that raise problems for a society's legal system may be analyzed in terms of eight broad and overlapping categories: 1. The civil process , which provides procedures for, and protections in relation to, voluntary and involuntary hospitalization; voluntary and involuntary treatment, whether in the hospital or the community; release of the mentally ill from hospitalization; determining the competence of mentally ill people to make various decisions; and the making of substitute decisions for those who are determined, in any particular context, to be not legally competent. (The processes by which people are detained and treated for mental illness against their will are called processes for civil commitment.) 2. The criminal process , which determines the competence of an accused person to proceed in the criminal justice system; the nonresponsibility or diminished responsibility of the mentally disordered for what would be considered criminal actions; and the disposition, treatment, and release, whether conditionally or unconditionally, of mentally disordered offenders. (The processes by which mentally ill people are detained and treated within the criminal justicecorrections system are termed processes for criminal commitment.) 3. The juvenile and family process , which deals with procedures for, and protections in relation to, voluntary and involuntary admission of minors to mental hospitals; establishes rules and procedures for determining the compe-

Due process orientation does not always mean political liberalism.

Based on a factor analysis, a distinction is made between Procedural Due Process and Due Process/Crime Control attitudes. Factor scores were developed to classify survey respondents on each dimension. Only Due Process/Crime Control scores correlated significantly with political self-definition and Witherspoon Exclusion criteria. In response to a description of a criminal case, student mock jurors with relatively high scores on the Due Process/Crime Control (or politically correlated) dimension made verdict determinations that violated due process by (a) being more likely to convict a White police officer than an Hispanic janitor defendant given identical evidence, and (b) increasing their conviction rate when exposed to illegal evidence. In contrast, student jurors relatively high in Procedural Due Process made verdict determinations consistent with due process by (a) judging the two defendants equivalently in terms of conviction rate and (b) following instructions to disregard illegal evidence. Student jurors low in either form of due process exhibited illegal evidence bias, but no defendant bias. Implications of a two-factor model of due process attitudes are discussed within the broader framework of a society's legal system.

Cold War Justice Revisited: Radosh & Milton and Major on the Rosenberg and Oppenheimer Cases

According to the German philosopher Immanuel Kant, a society's legal system approaches ethical perfection to the extent that it treats people as ends rather than as means. Judged by this august standard of Kant's famous categorical imperative, the past year has not been a banner year for the American legal system-as recent publications illuminate earlier calamities. In a San Francisco courtroom recently, a federal district judge vacated the conviction and sentence of Fred Korematsu, one of more 110,000 Japanese Americans and resident Japanese aliens who were systematically excluded from their homes, farms, and businesses during the Second World War and herded into detention camps. The government of the United States justified this horrendous deprivation of civil liberties on the ground that Korematsu and other ethnic Japanese represented an obvious threat to the security of the nation. But in vacating Korematsu's conviction for defying the exclusion order, the federal judge took notice of new evidence that in 1942 attorneys for the United States had deliberately suppressed FBI and other intelligence reports refuting claims by the military that ethnic Japanese had engaged in acts of espionage and sabotage. The whole sad and dreary story of how Japanese Americans became scapegoats for our military frustrations and victims of our racial prejudice has been told by one of Korematsu's lawyers, Peter Irons, in his appropriately titled book, Justice at War.' The new book by Ronald Radosh and Joyce Milton on the Rosenberg atom spy case and a paperback edition of John Major's 1971 study of J. Robert Oppenheimer's hearing before the Personnel Security Board of the Atomic Energy Commission will do very little to moderate the long-standing

External Benefits as Treated in Jewish Law

Neoclassical economic theory views man in his economic activities as a monetary maximizer. Efficient pursuit of economic gain requires an economic unit to evaluate his market alternatives by balancing anticipated marginal gains against anticipated marginal losses. Relevant for the initiating agent in this calculation is the amount of benefits he can anticipate to capture against the costs society's legal system force him to take into account. Benefits and costs generated by his actions to other parties, but not falling within this calculus, called external benefits and external costs, are assumed to play no motivational role in his market conduct. To the extent that society's legal system fails to provide adequate incentives to allow the initiating agent to be compensated for the full extent of the benefits his actions generate and fails to charge economic actors for the full extent of the detriment their actions impose on others, a misallocation of economic resources will occur. From a social standpoint, too much will be produced by enterprises involving external costs, while less than the optimal amount will be produced by industries involving external benefits.

Church Sects and Parties

ded in the spiritual, moral, political, and legal system of society. It must be, together with this, disciplined, animated, and unified by fundamental conceptions of our civilization. Its smooth and vigorous operation largely depends upon social and political conditions at large being compatible with the economic constitution of the competitive system relying on private interest and initiative. Such are: First, political conditions maintaining nationally and internationally a clear and relatively stable demarcation between the field of public activity and the field of business and a clear cut between public law and commercial and civil law; second, protection of business from overtaxation and monetary instability through wellordered public finance in all the main capitalistic states; third, interconnection of international markets and price systems and a consistent operation of international credit and monetary standards. The capitalistic system could only meet with so mairaculously favorable and compatible social conditions all over the world because it is itself one of the expressions of the spirit which gives unity and vigor to that Occidental civilization which conquered the world during the last few centuries. With this unity in spirit making for compatibility and consistency between the different spheres of life, European society was able to develop its predomninant role in the world as well in the political as in the cultural and the economic fields. Moreover, the system could be maintained only when in all countries leading groups equally interested in the development of capitalistic life defended it. These groups, however, were able to maintain themselves and their positions onlv as long as they possessed the aristocratic quality of a consciousness for the consistency and logic of the set-up of Occidental civilization, not only in its economy, but in all its aspects, and the sense for its final values.