Topless in NYC.

Q: Since early 2013, women can be topless in New York City without fear of being arrested. Do you agree with that? What would Mill say? 

Mill would be interested in the fact that women's breasts being considered more inappropriate than male breasts. It seems to be a case of gender discrimination, because it is not illegal for a man to walk through the park shirtless. Yet, society seems to find women's breasts to be more socially unacceptable. This informal norm compels women to act in a certain way, which according to Mill, is wrong. A government can only impose actions/policies to its citizens if he/she is in some way harming another. In this case, publicly showing of breasts does not seem to harm anyone in the physical sense. Therefore, I would be in agreement with Mill, who would argue this is a just ruling.

J.S. Mill: On Liberty

1. What, according to Mill, is the major problem for a democracy?

 

 Mill is concerned with the "tyranny of the majority" which restricts individualism, which is important to his Liberalism view. Mill departs from individualism to collectivism, still utilitarian, but concerned with the quality (as opposed to quantity) in maximizing the happiness principle. There is the tyranny of formal kind (government/authority) and also informal (social/culture). Formal authority often controls popular cultures, and enforces in more ways than just sanctions (civil penalties) for individuals to submit to their opinion of what is best, right, preferable, etc. He believes that democracy is the best form of governing, but argues that restrictions be placed so as to protect those rights of individuals, especially that of minorities.

2. Mill believes that not all laws are justified. Why not? Can you think of any existing laws that violate Mill’s principle? Do you agree or disagree with Mill? Why?

 

Mill argues that while government has a role to play, it ought not to interfere with its subjects when, 

 

(1) When the action can be done better by private persons. 

(2) When, premise 1 is not fulfilled, but the private persons would benefit from doing so autonomously.

(3)When the action gov't imposes confers unnecessary balance of power to it, thereby endangering individuals. 

 

Premise 2 could be applied to mandatory education til 12th grade in the United States. According to Mill, compulsory education is wrong because the individual ought be to able to choose where, how, and when to receive his/her education. However, there are provisions allowing for parents to elect their form of education for their dependents (catholic schools, private schools, home schooling) 

 

 

3. How does Mill justify the freedom of expression? 

 

To Mill, freedom is a right so long as the individual does not interfere with other's degree of freedom. In particular, freedom of expression is crucial to the airing of competing opinion so as to capture the best possible picture of truth. Debate allows the showing of partial truths, until more knowledge is gotten. For minorities, especially, shutting out their voice inhibits the full potential for growth that a society may have.

4. Freedom of expression is protected by the First Amendment; are there any cases of free expression, which are not protected by the First Amendment? Do you think freedom of expression should be unlimited?

 

If we follow Mill's approach, all forms of expression should be allowed so long as they do not pose a danger to others. My view is that no reasonable forms of expression should ever be prohibited. I cannot think of a case where a reasonable person may endanger others. Cases of yelling fire when there is none, the slipping of classified information for Nat'l Security purposes, etc, are all negligent activities and should be reprimanded as so. As far as stating your opinion on a particular topic- or even flag burning- these things should not be forbidden. Justice Scalia of the U.S. Supreme Court once argued that though he would personally throw flag burners in jail, the Constitution prohibits using the law as an instrument to punish those who exercise this fundamental right. I like this argument, and agree with him entirely.

 

5. Some scholars have suggested that the cases in which the courts have permitted states to limit religious freedom nearly always involve activities important to minority religious groups: the use of peyote by Native Americans, the practice of polygamy among Mormons and Muslims, the refusal to salute the flag among Jehovah’s Witnesses, and so on. These critics contend that the courts would not be likely to permit similar restrictions if they impacted “mainstream” religious groups in America, such as Christians or Jews. Is this criticism fair?

 

 I think its a fair criticism, though it would be hard to name a popular religon that holds onto a practice that explicity, and clearly harms another. Less can be said for informal practices and beliefs, however, as those can be equally as dangerous. The debate seems to be couched in the utilitarian principle, in that the majority beliefs will receive preferential bias just because there are more of them. My own view which I detail in Q.5, is that no reasonable expression of freedom should be prohibited.

Natural Law & Legal Positivism

1. How does M.L. King argue that segregation laws are unjust? 

M.L.K. argues in terms of natural law, that all segregation statues are unjust. Segregation distorts the soul and damages the personality, giving false value judgements of superiority and inferiority to, oppressor and the oppressed. He invokes Martin Buber, "segregation substitutes an "I-it" relationship for the "I-thou" relationship...relegating persons to status of things". (Adams 80) Segregation is morally wrong, therefore unjust.

Also invoking a type of categorical imperative he says, "An unjust law is a code that a majority inflicts on a minority that is not binding on itself." (Adams 81) He is arguing also that Blacks and other oppressed minorities did not receive their right to vote on policies, laws and practices in which segregation is brought about in their common living space.

2. Why, according to King, should we disobey unjust laws? 

 

 King invokes St. Augustine and St. Thomas Aquinas' natural law theory, "An unjust law is no law at all". (see question # 3)

3. How does Aquinas determine if a law is just or unjust? 

Aquinas erects eternal law (morality) as the highest form of law. He then sets up a natural law and human law, subordinate to this eternal law. He considers morality to be a form of eternal law. If a human law is in discord with a natural, or eternal law; it is unjust. If it is an unjust law, it has no business being a law.

4. How would a Legal Positivist judge segregation laws? 

It's not so clear, though they are likely to use a utilitarian calculation to see whether its a beneficial law. The main difference between a Natural Law theorist and a Positivist, is their opinion on whether law should be logically tied with/without morality. A Positivist claims that laws could coincide with morality, though it is not necessarily so. 

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Part II: Legal Positivism & Unjust Laws 

MLK is quoting Augustine when he says, "An unjust law is no law at all". This view argues that legal systems ought to be aligned perfectly with morality. A law must be also the true moral thing to do. However, Legal Positivism disagrees, claiming that a "Positive Law" should take the place of "Natural Law", so long as it can satisfy the main condition a legal system is created to solve-justice. Austin thinks that this positive law can come in the form of commands by superior ranking individuals because a law is, "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him". (Adams 49) In this view, an act may have legal justification but no moral one; another act may have moral justification but no moral one. 

I'm not sure that Legal Positivism refutes Augustine, but it surely disagrees with it. I find no justification for Austin's "command theory"; what gives one the justification to force compliance from another? It seems like only force that establishes this type of an authority. I have less problems with Hart, as he disagrees with the command theory but holds onto the seperation thesis that (One can have legal right but no moral right).

Nuremberg & Abu Ghraib

1. What are Jackson’s arguments in support of the charter of London?

 Robert Jackson, who served as Chief American prosecutor at Nuremberg introduces the trials as novel and experimental, but necessary to serve justice. He asserts that the high-level officials of the Nazi Party should be offered a similar hearing as that of Western Anglo-American systems, where they may receive deserved chance of defense. He charges the Nazi officials for three crimes. Count 1: Crimes Against Peace, or violations of traditional Just War theory and aggressive action in discord with prior international agreements. Count 2: War Crimes, or violations of Just Cond uct in War. And Count 3: Crimes Against Humanity, or crimes against the civilian population of minorities which include murder, extermination, enslavement, etc.

2. What are Wyzanki’s arguments against the legality of the charter? 

While Wyzanki feels repulsion and disgust at the actions of the Nazi Party, he find problems with all three counts, and also in the fundamental nature of the charge. Jackson indicates in Count 1 that the Nazi Party (N.P.) operated against the agreements of international societies in war. However, as Wyzanki points out, there are no formal international agreement that states explicitly that a country cannot murder its own citizens in a time of war. (Adams 29) For this reason, he states that the charge is ex post facto, or simply there should not be any crime stated or penalty imposed previous to an antecedent law. He also takes issue with Count 2, which charges N.P. for Crimes against Humanity for the same reason. Jackson cites treaties (Briand-Kellogg Pact of Aug. 27, 1928, League of Nation deliberations, etc.) to demonstrate increasing international awareness that aggressive actions of war is harmful. The claim that Jackson inplies from his charge though, is that increasing awareness means that these aggressive actions are formally outlawed, which doesn't seem to be the case. Count 2 establishes that the N.P. participants are guilty of conspiring against humanity by planning, preparing and executing the act of war. Since there is no antecedent law preceding this event, there seems to be no justification for punishment (strictly speaking in terms of law). He will point out other problematic areas in Jackson's case, but emphasizes that the structure and implications of his charges seems to undermine the principle of justice in which he claims to represent. Count 2 is a political crime (unlike that of Count 1, and 3), but the party judging N.P. officials happens to be the victims of this crime. Additionally, reason and justice is designed to limit power- but in Jackson's case, he seems to have harnessed the practice to serve retribution.

3. The question of whether Specialist Charles Graner Jr. is guilty or not, depends on the degree of truth in both his charges and the military protocol that he is supposed to obey. Because these facts are unclear (or require some pretty thorough research), i'll look at the situation two ways. The first will be that Graner is certainly telling the truth in all of his testimonies, and that there is a clear military directive which compels him to mistreat prisoners. Second, I'll approach it from the angle that there is no clear directive, and his maltreatment came from his own failure of reasonable judgment.

a. Premise: Graner is telling the truth, and there is a clear military order to "abuse" prisoners. 
 This situation calls into question whether military professionals can be held responsible for following orders. It carries a striking similarity to the Nuremberg trials, and whether it is equally punishable. This certainly dimishes Graner's responsibility, for he is compelled to act in what seems to most people as a morally repugnant way. If Graner disobeys, he will surely face a type of punishment for misconduct, failure to obey command, etc. by the military courts. However, he still remains guilty of committing a crime. If Soldier A is charged with shooting all people (even civilians) who crosses a certain distance from the camp, one wouldn't say Soldier A is guilty of murder, but just killing another human being. This doesn't absolve the crime, but re-evaluates the moral weight, and thus proper punishment for the act. If Graner is compelled by direct military order to abuse prisoners, 10 years and reduction of rank & benefits is much too harsh a punishment. I would propose some other lower arbitrary number, or reassignment of job specialty and location. He doesn't seem to be fit to make proper decisions as an prison guard (Miltary Police), thus he should be assigned in a operation more fitting to his skill and affinity.

b. Premise: There is no clear directive to "abuse" prisoners.  

Of course, I'm skeptical of whether his superiors (Military Intelligence seems vague...) would formally document a directive such as this. Granting that there was no formal directive...If the abuse was open to his judgement, then he is clearly deserving (legally speaking) of 10 years, perhaps even more. It's an abuse of power, and unreasonable treatment of prisoners even if they may be suspected terrorists.

Tort Law

1.     What is the difference between criminal law and tort law? 
Criminal law concerns itself with "ensuring compliance with the rules and standards essential to preservation of society as a whole". (Adams 519) With each crime, however, there is often harm to a victim. Tort law deals with victim's harm often in terms of liability. 

2.     What are the conditions for strict liability and negligence?
Strict liability must show, "(1) the defendant did something, (2) the plaintiff was injured, and (3) the injury was caused by what the defendant did." (Adams 520) Liability in negligence is established by plaintiff when he proves all the conditions set by strict liability (see preceding def.) but additionally that, (4) defendant is at fault. Commonly referred as a "breach of duty" (Adams 520), negligence indicates that defendant did not take reasonable steps to care/regard for another's safety, and exposing another to unreasonable risk/harm.

3.     What does it mean that an event A caused another event B? Give an example.
This type of causation is similar to a necessary connection, or where event (B) must be preceded by condition (A) for it to occur. A quick example is, (X) If [and only if] Prof. Albrecht gives an assignment on Tort Law, then (Y) I will complete this assignment on Tort Law on my Blog. In this case the event (Y) is caused necessarily by condition (X).

4.     What is legal causation? Give an example.
Legal causation deals directly with the degree of defendant liability, after determining the factual causality (see answer 3). This is called proximate cause, or the judgement that draws limits of causal liability within fair boundaries. One can have different interpretations of proximate cause in the same example, but Judge Benjamin Cardozo argues that in Palsgraf v. Long Island Railroad that the parcel in which contained firecrackers, which set off the loose materials that in turn harmed Mrs. Palsgraf- was not foreseen. The Railroad has a duty not to harm Mrs. Palsgraf in all foreseeable ways. Seen this way, the Railroad is relinquished from proximate causation while still contributing partially to cause in fact.

5.     What were the reasons for the court's decision in Lynch vs. Fisher? Do you agree - why or why not?
Lynch would not be injured if not for the initial negligence by Fisher, who parked his truck dangerously on the highway. Though Gunter fired the shot, it was acted in a temporary state insanity that was induced by Fisher's first negligent action. The result for this case is that Fisher is liable. I agree with this ruling because it treats properly the chain of causality in terms of proximate cause. One can easily draw this causal chain to say further back to remove Fisher from responsibility. However, these preceding elements are conditions and not causal factors in the harm inflicted. As far as Law of Torts is concerned, i think it a practical and economical way to rule this case.

6.     What were the reasons for the court's decision in Palsgraff vs. LIRR? Do you agree - why or why not?
This case is similar to Lynch v. Fisher, in that it deals with proximate cause. The majority opinion was that Long Island Railroad is not guilty because the harm inflicted was not foreseeable. I disagree with this. Judge Andrews argues an opposing point that, "negligence is not a relationship between a person and those whome he might 'reasonably be expected to injure', but rather to all those whom he 'in fact' injures". (Adams 556) In Lynch v. Fisher, Fisher parked his car on the road negligently without intent to set off a chain of events leading to Gunter shooting Lynch. Yet, he is held liable because he made the first negligent action admist other conditions one can say he was aware of, reasonably. The same rationale should apply to Palsgraff v. LIRR.

Stanley Williams: In Favor of Clemency

Summary of case: 
Stanley Tookie Williams, early leader of street gang in South Central Los Angeles, was convicted of three murders in 1979. While waiting on death row, he began to advocate anti-gang efforts. In 2005, there began a campaign for clemency for Williams. He was denied by Governor, Arnold Schwarzenegger, and execute via lethal injection December 13, 2005. (Paraphrased from Prof. Albrecht's blog)

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In favor of clemency: 

Because Williams is guilty of three (3) murders; one could easily apply a utilitarian argument here to justify the death penalty. Additionally, one can apply the retributive argument. Justice, to the retributionist, would demand a person who takes a life to suffer the same end. This implies that there is a type of desert in which actor deserves something in consequence of their action.
My argument is to deconstruct and rebuild a clearer understanding of both the utilitarian and retributive arguments. In doing so, I seek to respond to two fundamental questions common to discussions regarding the death penalty: (1) does it deter crimes as much as it claims it does? (2) Is it morally justifiable? This discussion will provide insight to Williams case to determine whether he deserves to die, or more importantly, what does it mean for someone to deserve to die?

I'll first begin with the retribution argument. Kant argues that one who murders must be punished with death, "there is no 'sameness of kind' between death (of a victim) and continued life (for the murderer)". (Adams 469) Kant will continue saying that this is justice, and not merely vengeance. Society must uphold the notion of autonomous persons making choices, by giving persons what they deserve. To do any less is to use that person's fate for our convenience (in this case, to lessen our own discomfort at the thought of execution). I don't have objections to Kant's argument. I do, however, raise questions how far this principle is applied in making legal decisions. Kant's argument seems to justify, for the most part, the Lex Talionis approach (eye for an eye). It seems that this would mean that we should rape the rapist/murder the murderer. Yet, we don't rape the rapist- we incarcerate him/her. The same should be done with Williams- give him the severest punishment short of the death penalty.

The utilitarian argument, i think, has more relevance to William's case. South Central Los Angeles is a region rife with gang-conflict, and Williams is a founder of a well established gang. There are many utilitarian benefits to punishing Williams i.e., executing the early founder sets a significant example (deterrent), and though he is convicted for (3) murderers there may be many more (plus those in which branches of his gang commits/offsets). Governor Schwarzenegger may have considered Williams more significant because his symbolism and status to the gang community, and prior influence to many crimes, murders, and harmful behavior to the public. However, to take a utilitarian justifications, one must consider William's anti-gang efforts. He is no longer a symbol of gang violence, but rather the contrary. Thus, if he had once held greater utility in terms of punishment, then he serves quite the opposite now. It's also important in the utility calculation the cost and time needed to sentence a person to death. Not that Williams was convicted in 1979, and remained on death row until 2005. This is sixteen years of incarcaretation, attorney fees, legal procedures which is likely to cost more than a life-sentence.

Wendigo Case (Defense)

I'll first provide an overview of the prosecution of the Native American man (N.A.), who shot and killed another human in Northern Canada. His charge is manslaughter. The other human that he killed, N.A. believed to be a "Wendigo", or an evil spirit believed to eat human beings. This belief is unique, but common to his tribe. This defense will be that he has proper excuse for his action, thus punishment be lessened or revoked.

The charge of manslaughter as defined by M.P.C. is,

"a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be". (M.P.C 210.3)

The premise for my argument is that N.A.'s tribe holds the myth of "Wendigo" to be true. Although their conception of it as, "evil spirit clothed in human form....who eat[s] human beings", is a dangerous and vague description (anyone can be categorized in this way)- to N.A. and members of his tribe, his action is excusable. Recall the last part of M.P.C.'s criteria for manslaughter where it discusses what is a reasonable explanation of an actor's action, and that it depends on the actor and his context. For N.A., who believed to have witnessed the "Wendigo", perceived a potential threat to him and his community. Given his circumstances, his actions can reasonably be considered to be Self-Defense. However, the consequence of this belief is troublesome. How many more innocent people will be killed because a tribesman mistakes them for an evil spirit? This issue requires further discussion on the nature of beliefs before one is able to prescribe a just punishment to his action.

Beliefs can be thought of a conclusions/assumptions based from habitually recurring relationships. This way, we can evaluate the sensibility of N.A.'s "Wendigo" belief by imagining whether you, I, or any rational person would draw the same conclusion. If not, this situation demands a type of reflection to further their accepted understanding of their world, and societal behavior. In this sense, N.A.'s actions lead to social reform (if his situation is novel, or unsolved previously), thus justifiable.

Kadish on the Voodoo Case

1. Under this definition, can Victor be convicted of attempted murder? 
Yes, on all three premises of M.P.C.'s definition of "Attempted Rape". The first requires that one commit an act that harms another if the conditions were as if one imagined it. In other words, Victor believes that his wife is under the power of voodoo, and commences his activity. A second requirement is that one makes no (action/or inaction) so as to prevent the crime. Victor, once he has had enough, continues without hesitation to the completion of the act. The third premise requires a substantial step in the direction of the crime. Victor, in this case, completes the entire crime.

2. How would Kadish analyze this case?
Kadish makes extensive comments on the "harm doctrine", examining it by use of three prevalent legal examples: law of attempt, cupable risk, and impossibility. For relevance sake, I will relate Victor's example (voodoo case) with Kadish's views on attempt and impossibility. To Kadish, its absurd to "reward" a failure to complete a crime. He is likely to argue that Victor should be charged fully for murder and not for attempt. He takes a similar stance when he invokes the example of a man who stabs his son in anger. His son is hospitalized and he enters jail temporarily waiting to be tried. In three months his son dies, and the man is charged with murder (a crime with life sentencing). Kadish says, "Has he suddenly gotten more dangerous because his son finally succumbed?...In none of these cases does it make a whit of difference so far as identifying the actor as prima facie (at first appearance) requiring protective measures or as indicating the length of time the actor should be held". (Smith 399) In this quotation, Kadish is prodding at the "harm doctrine" exposing it as unreliable at criminal prevention. To do this he hypothesizes that the man's act/intent/nature should not be treated differently before and after his son's death. In like fashion, that Victor was successful in the crime is irrelevant if he truly believes that stabbing the voodoo doll would kill his wife- Victor's dangerous nature is still there, and should be treated in this manner. Suppose his wife lives, and he walks away free, soon getting a solid grip on the lived universe (or disbelieving voodoo). What is to say he wont attempt to kill his wife once more, in the physical realm? The intent was, and will continue to be there.

It's unclear what Kadish's views are on the impossibility doctrine, that is, how to judge crimes if they are impossible to commit. He says, "It may be conceded that a different response may be called for if the impossibility would be obvious to any sane person...or where the evidence of criminal intent is doubtful". (Smith 399) He makes no mention of what this different response is, but one can induce an argument from his following claims on the cases that intent is [not] doubtful. One may examine Victor's case and say, no sane person believes in voodoo (impossibility). Yet, Victor would insist that for him, voodoo is real and connects his personal fabric of reality. Thus Victor's, who murders his wife (in the voodoo sense), guilt is indisputable. To Kadish, "punishing attempts and completed crimes differently makes no sense insofar as the goal of the criminal law is to identify and deal with dangerous offenders who threaten the public". (Smith 399)

Yet, its important to recognize that Kadish intention for this paper is to show how the "harm doctrine" is not consistent and successful in judging crimes. All of these predictions I've listed above are inferences, and not direct assertions by Kadish. It's probably more reasonable to assume that Kadish would be more skeptical than making any declarative statements about how things should be judged.

3. What is Kadish’s criticism of the “harm doctrine” and how does it apply to this case?
 Kadish argues that the "harm doctrine" is theoretically incoherent and ineffective in it's goal of crime prevention. He uses examples such as that mentioned in (Q#2) with a man stabbing his son. The father is not any more dangerous to society prior of after his son's death (taking personal transformation of the father aside). Therefore to judge him based on the results of the outcome, whether attempted murder or murder, is nonsensical. He will further assert that the argument from harm is illogical and leads to a different conclusion than one accepted by the courts. It is, "we need the harm to happen in order to be sure of the dangerousness of actors". (Smith 399) To not honor this harm principle, is to deprive actors of the final freedom to do what is considered good, and right. Kadish will say that in both a failed crime and attempted crime, the intent must be proven to convict. Further, to follow this argument is, "not to punish less but to not punish at all". (Smith 399)

Kadish will go on to deconstruct other arguments in favor of the "harm doctrine". Deterrence is one way to prevent crimes. In simple words, if one becomes aware of the punishment associated with a crime he/she is less likely to commit it. Kadish poses under these lens, whether it is right to judge attempts and crimes the same. He says no, "the only way to maintain its full deterrence force is to threaten punishment whether or not the harm occurs". (Smith 400) It wouldn't make sense for deterrence's sake, to inform citizens that if they try a crime and fail, they will be punished less for it. Kadish makes this claim simply to prove the ineffectiveness of judicial system under the "harm principle".

Kadish considers an argument from "moral luck" to be a substantial obstacle in his goals to prove it irrational. It is propogated by Thomas Nagel, who uses determinism as a premise for judicial rulings. In a deterministic world, people are products of luck, not in control of their preferences, choices and existence. Therefore, any situation that arouses one's antisocial or criminal tendencies is on two levels (preferences and environment) is dependent on one's luck. This view poses a challenge to our current system which believes, "what you deserve is what you choose". (Smith 401)

For commentary of how Kadish's criticism applies to Voodoo case, see (Q#2).

4. According to Kadish, why do we still have the “harm doctrine”? 
Society influences what is to be, and not to be the law. Occasionally, "the law must defer to people's irrationalities to mantain the acceptance needed to govern." (Smith 397) While most are not likely to enjoy being called irrational, one should understand that Kadish's irrationality is synonymous with intuition. His claim is not that the masses are not stupid, but instead misguided, "Doesn't it seem natural for a parent to want to punish her child more for spilling his milk than for almost spilling it...more for running the family care into a wall than for almost doing it?". (Smith 401) The reason that the legal system clings onto the harm doctrine is because it conforms to a common morality appealing to societal intuitions. Kadish will further assert that the law is merely a reflection of the society's morality. Therefore, the law will judge according to what society deems fair. I interpret Kadish claim to mean that one should clarify one's assumptions about morality to know what is just and fair. Our misconceptions will reflect into our legal system and may condemn or reward others unjustly.
 

Peterman/Prosecution

Steven Peterman, age 45, arrived at the woman’s house with intent to rape the invented 10 year-old girl. I believe he is guilty of attempted rape. We can evaluate the attempt in in two parts: action and intent. The Model Penal Code offers action to mean, “muscular movement under conscious control”. (Adams 387) Framed this way, we can determine two major actions that Peterman makes towards the rape of a child. First, he engages dialogue with the woman who claims to know this child, to set up a meeting. Second, he physically moves himself to the woman’s house where his attempted rape is foiled by the police. This point is more significant, legally speaking, than the first. The dialogue can be considered as contemplating the crime; thinking about performing the rape. The scheduling of meeting is preparation. The commute to the house can be considered as the final stage of preparation and straddling the line with action. All these steps clearly demonstrate what legalists term mens rea, or intent to commit the crime. Simply put, Peterman’s intent in raping that child is self-evident from the facts presented. 

Comments must be made on the distinction between attempted rape vs. actual rape. Some may conscientiously believe that Peterman was set up and baited to commit a crime that was impossible to commit in the first place. This is a valid argument, though less persuasive once you note that Peterman is presumed to be involved in a child pornography ring. His history with child pornography reasonably suggests that he is a threat to society's children, and uses the internet to solicit them. The police’s method in this case then, is just. After all, the purpose for our police and courts is firstly to keep the peace. Additionally, one may say that no crime occurred if there is no victim (no one was raped). The metaphor used in the readings summarizes the relationship concisely. Imagine two individuals, each pointing a pistol at you with the intent to harm you. They fire at the same time but only one of the bullets hits you. Will you be sympathetic to the individual who missed? Surely, you will not excuse one of the murderers for his/her incompetence. The same is true for Peterman. A attempted rape is equivalent to actual rape in its intent and harm inflicted, with the only difference being that the crime had failed; Peterman would have raped that child if she were real.

Overcrowded Lifeboat

Do you think that the defendants in this case are guilty of murder (see the penal code on p. 2) or were they justified in their action? (See definition on p. 2). Why or why not?
In a legal perspective, I believe the defendants are innocent and justified. The state’s penal code states that murder is the killing of a human being with intent to kill. Surely the first mate of the lifeboat did not intend to kill the five passengers he refused onboard. One can ask whether refusal (with knowledge that it will likely result in their deaths) is considered an action as well. Though I sympathize with this argument, I think that’s a moral argument and unable to be handled well in a strictly legal sense. 
There were initially twenty-three passengers on a lifeboat that had capacity to hold one more. That the first-mate chose the strongest male among the stranded makes sense because that individual could contribute most effectively to rowing their way into survival. The first-mate calculated and acted on what objectively served the best interest for the majority. While the resulting five deaths are real, saddening and controversial- the defendants made the proper choices in maximizing survival for the majority, legally.

Do you think that the actions of the crew were morally right? Why or why not?
In the situation of the lifeboat, refusing the stranded passengers led to their deaths. Though the first-mate did not perform an action that killed these passengers, his inaction inevitably did. I think that morality applies to both positive and negative actions. In other words, it matters equally what you choose to do as well as, don’t do.
Of course there are practical factors that severely limited the first-mate’s action. This is the most difficult part for me, and I’m not sure what I would’ve done in the exact context. My own views on morality would resemble Kant’s deontological approach and his categorical imperative. I recognize that following this doesn’t necessarily lead to positive outcomes, but I think that they are compatible for the most part. I think that remaining crew members should’ve forfeited their seats. They could’ve drifted alongside the boat while still directing the route to the main shipping channel. Though there is a risk of drowning, their training and experience at sea offer better chances of survival than stranded passengers but most especially the pregnant lady. I find that these extreme circumstances, where the few alternatives offered are equally dim and risky, resolving the concept of morality becomes more urgent.

What would a utilitarian philosopher argue, and what would a deontological philosopher, such as Kant, say? (For the ethical theories, see p. 7-14)
The utilitarian belief system is a consequence centered approach that maximizes happiness (benefit) for the majority in a moral situation. There is some disagreement on the definitions of happiness and benefit. The reading poses this distinction well, “Is the pleasure derived from…writing a great novel really no better than the pleasure associated with getting drunk?” (Adams 9) There is also some divergence in how far this principle can be applied; the individual, or the larger rules of society. In the case of the overcrowded life boat, the utilitarian is likely to argue in defense of the first-mate’s actions because he maximized the happiness of the twenty-four people that he saved. It seems at first, that since lives saved outweighs the lives lost, the right decision was made. To properly apply utilitarianism, however, you would have to agree on concepts of happiness and application of the principle. For example, a type of utilitarianism believes that there are higher and lower forms of happiness may be at odds with saving lives as the greatest type of utility. He/she may argue that the elation of doing a good deed is a higher pleasure than just simply, living. In another sense, one might consider societal rules. Say the public became outraged that they allowed a healthy male to climb onboard rather than an elderly man or pregnant lady. If one considers the utility of society important as well, then the judicial body my feel compelled to convict the first-mate to assuage the public’s outrage. A final point is that one man’s utility is not easily calculated in finite terms. The reading offers the case of a 250lbs. football player who may potentially take two spaces on that ship. A superficial utilitarian approach would demand that individual to sacrifice oneself for the utility of two more bodies. These examples demonstrate that the utilitarian approach is complex and one must agree on certain premises to go forth with this approach.
The deontologist strikes at the moral problem of the overcrowded lifeboat in the opposite way. It emphasizes individual duty and obligation in moral decision-making. The reading uses Immanuel Kant’s writings on his categorical imperative to clarify this point. The categorical imperative states that an individual should deliberate a moral action only if it can be considered universally moral. For example, we can extract the action from the overcrowded lifeboat to treat it independently from its context: the first-mate refuses four passengers on the lifeboat and this inevitably leads to their deaths. Can we imagine the first-mate accepting this fate if the situation were reversed? Would he be willing to sacrifice himself freely to save the lives of the other twenty-four? According to the deontologist, if he is not, then the first-mate’s decision violates the categorical assumption, thus it is immoral.
Kant also talks about human autonomy and our duty to respect it. In short form, we must “act so as to treat others as an end and never as a means alone” (Adams 13) It seems here, that the categorical imperative clashes with the calculating nature of utilitarianism. One cannot prescribe values on human life, and each individual should be treated as one because they are each autonomous. However, both approaches can lead to the same conclusion- in a way. The first-mate’s duty to the survivors in the lifeboat is equally important to the duty to the stranded. The controversial area is that he decided to take on the strong male revealing his maxim, or private rule that was geared towards survival. The deontologist may argue that survival may not have been the most important moral principle, but rather his/her obligation to fulfill the purpose to rescue (even if it were not possible).