Pirates, Piracy and the Law

I. Introduction

The study of the history of Piracy and Pirates can be studied from the viewpoint of many vocations; including, technological, sociopolitical, or criminological. However piracy and pirates can also be look at through a legal perspective. The relevance of study piracy from the prism is best illustrated by consider what piracy and pirates are. Piracy was a crime, a violation of the law. Pirates are a class of criminals whose primary crime was piracy.

As piracy is a crime their must be in existence specific laws on the subject. Like all criminal laws the laws regarding piracy serve to define what actions or combination of action or omissions would constitute piracy. Like all laws the laws relating to piracy have a source. The Source for laws includes custom, statue and treaties. The law also provides for finality. Laws sometimes have exceptions the exception to the general law om piracy is privateering. Finally the law of piracy provides procedures for the prosecutes pirates and for the alleged pirate to defend against those charges.

II. Law of Piracy and its sources.

Regarding the law defining piracy; Their are many laws on piracy however it is possible assemble a definition of piracy. An individual is guilty of piracy if he disposes and “carries away” or attempts to dispossess and carry away another’s vessel its cargo or passengers property on this said vessel; or be the commander or member of crew of a ship used as platform for the completed or attempted act of piracy. All the aforementioned conduct will unless the crew conducting the piratical act is acting under and according to a letter of marque or otherwise functioning as a state apparatus. Furthermore for one to be guilty of piracy the piratical act must take place in international waters which exists at least 3 miles from the coast of the mainland. The law banning piracy would not limit it self to people engaging in traditional acts of piracy; the law also classifies people knowingly helping or involving themselves with pirates as pirates themselves. The type of help or involvement classified as piracy include conspiring with the pirates, financing the pirates, procuring items to be used by pirates, holding stolen goods for them, advising them, directing from shore giving them equipment or helping them recruit etc.

The sources of these laws banning piracy varied. Like all law much of the laws banning piracy were customary law or international customary law. Customary law is created overtime based on a significant number of people or entities engaging in or not engaging an activity based on a belief of a legal duty or legal right. During the age of discovery and latter countries such as England began to use statues as a tool against piracy. These early statues such as the offenses at Sea act of 1535 and the Piracy act of 1698 stated that piracy was illegal and the procedure to be used in Piracy cases. However, in England, these statues did not completely overthrow the customary law regime. These statues such as the Piracy Acts of 1698, and 1717 usually did not generally define piracy and allowed the question of what activities constituted piracy to be answered by customary law. In terms defining what acts constituted piracy the early statues only described specific acts as piracy if those act would not be considered piracy under customary law. As such any description of acts constituting piracy was not a codification of preexisting customary law but an expansion on what activities where defined as piracy. The statues therefore served as a legal tool for governments to treat select maritime crimes with gravity and penalties of piracy. Examples of this practice are included in the 1698 and 1744 Piracy acts and piracy statue expanded customary definition of piracy to include the traitorous act of its citizens serving on an enemy privateer as piracy if English ships are targeted for attack. Also in 1698 the British government revised the law piracy to include Captains and Crew of Ships who voluntarily turn over their vessels to be used by pirates. The enlargement of numbers of acts statutorily classified as piracy continued into the 19th century. In 1824 the British Parliament would follow the United States Congress in expanding the legal definition of piracy to include the oceanic transportation of people to be used as slaves. Not with standing the British parliaments broadening of the definition of piracy, prior to 1997 British statue did not generally define what acts constitute piracy. In its 1997 Maritime security act wrote verbatim the United Nations convention the law of the sea. Latter treaty would ban piracy.

III. Privateering

Of course no discussion of piracy would be complete without discussing the legal form of piracy known as privateering. Privateering involved the state granting private merchant mariner’s licenses know as letters of marque legally entitling the licensed mariner to rob ships of an enemies and pirates. By operating under and within the scope of the letter marque an act which would nominally be classified as piracy would not be legally definable as piracy. A liscensed privateer was immune from a charge of piracy not only from the country who issued the license but from all other nations including the nation whose shipping was attacked by the privateer. Customary international law of the time demanded that other nations give a letter of marque full faith and credit and not consider its holder a pirate. Customary international law defined privateers as legal members of his countries service engaging in a legal military operation. As a member of his countries service he was immune from criminal charges for killing done in pursuit of privateering, and if captured had to be granted prisoner of war status. Not with standing its legal status, was very much like piracy. The privateers where motivated by profit. After paying the State a share of the prize they could keep the rest.

The institution of privateering gave all involved including the captains, the crew, and owners of privateering ships a huge legal and financial windfall. In exchange for these amenities privateers where bound to rules. To begin with, their status as a privateer was dependent of the holding of a letter of marque licensing acts which would otherwise be piracy. The letter of Marque while addressed to the present Captain is not held by the present captain as an individual. The rights granted by letter instead vested in the office of the captain of the ship that was intended to be used as the privateering vessel; the individual captain exercised those rights as an office holder. As such, if the ship changes commands the rights and restricts set in letter would remain held by the office of captain and exercised by the new captain. Only a state party authorized party could issue a letter of marque. The process as well the official with the right to grant such a license varied depending on the nation. In Great Britain the right to issue a letter marque was nominally vested in the lord high admiral the head of the British Admiralty who issued these licenses in the name of King. In most of the American and Caribbean Colonies the Lord Admiral usually deputized a local official, usually the Colonies Governor, as the Colonies Admiral or vice Admiral with the power to handle local maritime matters including the issuance of letters marque. . By allowing locals colonial governors the power to issue letters of marques the process was decentralized. When hostiles broke out between the various empires British colonial governors could rapidly commission large numbers of privateers to target the military and economic assets of its enemies. The privateers who the British Colonial governors licensed included notoriously brutal men such as Roche Braziliano and Henry Morgan; these men often targeted non combatants with especially cruel forms murder and torture as means to terrorize their victims into surrendering their wealth. However in spite of their cruelty these privateers where extremely effective they destroyed or stole much of Spain’s colonial wealth recaptured colonies and helped insure British dominance. The decentralized process involved in issuing letters marque allowed the British government to deny responsibility for the actions of the privateers while reaping rewards of her way ward privateers. If the British Government received foreign protests they could simply state it’s in ability micromanage its governors located thousands of miles away. If an individual privateer committed an atrocity the British government sometimes would completely deny responsible and say as far they know privateer is acting without a letter marque. In analyzing the process of the issuing of letters of Marque was extremely lax. Many of the people who where issued letters of Marque abused their privileges or degenerated into out right piracy. Virtually every major Caribbean Pirate began their career as captains or crew members on an
The Spanish had similar procedures in licensing pirates as the British. The Dutch out sourced the right to issue letters of marque to the Dutch West Indies Company, the premiere international trading company. However, the countries whose privateering licensing protocol where most unique was the United States. The licensing authority was more centralized then in other countries. The steps required to be granted a U.S. letter of marque where also far more rigorous then those of other countries.

In the United States the Constitution allows only the US Congress to issue letters of Marque. This means a would-be privateer would only receive a letter of marque if and when both house of congress vote for it and it passes and, like any other act of Congress, it was signed by the U.S. President. This highly rigorous process was likely indented to screen out undesirable elements attracted to privateering.

Once a privateer captain was granted the letter of marque he would be subject to the rules stated in the letter of marque. The contents of letter of marque state terms and parameters that its holders are legally obligated to follow. The letters of Marque would provide for vital aspects of the mission. It would state who the holder was entitled to target, the methods he could use and what date or event would cause the letter of marque to expire, as well as the percentage that monarch or State was entitled to. These terms where important because in some cases a violation could be seen an act of piracy. Of these terms perhaps the most is the term is who its holder could attack. The terms would state the nationality of the ships a privateer was lawfully able to attack, or if the letter was geared towards piratesw state that it applies to all pirates. This term was very important because privateering was considered an act of war. If a privateer went beyond his commission and attacked the ships of a country that was not at war with the privateer’s country that could force the privateer’s country into unwanted military and diplomatic entanglements. Consequently, governments took a hard line against such misbehavior, and charged its privateers who attacked nationalities not authorized by the letter of marque as outright pirates. To be in compliance with the law the holder of a letter of marque could not even attack the ships of a country at with the nation who the issue the letter of marque was war if that specific countries shipping was not mentioned in the letter of the marque. To remedy this problem privateers, including William Kidd, made it a practice to secure multiple letters of marques to cover any enemy of England whose ship they would be likely to have an opportunity to rob in their privateering expedition. Privateering licenses might also limit actions and tactics a privateer could use against an enemy. These limitations might limit the degree of force he could use as well as the targets and locations he could attack. In William Kidd’s ill fated privateering mission he was instructed to attempt take alive the pirates attempted to attach. These terms where not always abided by, the buccaneer pirates where notorious for attacking locations and using methods forbidden in the terms of the letters marques. The states that issued the letters of marque often turned a bind eye to such violations. The articles of the letter of marque sometimes provided for its own expiration. Letters of marque issued the Dutch and the French where only valid for 6 months. The English letters where valid until peace was signed.

A final demand on privateers is that they pay a share to the government or monarch who licenses them. For English kings this tended to be ten percent of the gross amount of prizes. For the English king the piracy awards where an important part of his income since he needed Parliamentary approval for the creation of taxes.

Privateteering was widely used from prior to the age of discovery until the post Napoleonic error. However in mid 19th countries began to take steps to end privateering. In 1856 the large European powers signed the Declaration of Paris which banned privateering. “Privateering is and remains abolished.” The Declaration Paris does not end the discussion about the legality of privateering. As a treaty the Declaration is automatically binding on nation who signed and ratified or latter acceded to it. Not all countries signed and ratified including the United States, Mexico, Spain and others. Further more many current countries where colonies at the time of ratification and thus where not a party to the treaty. While the treaty does not automatically bind these nations just by existence there is an alternative avenue that the Declaration of Paris which could ban privateering. The Declaration would be binding on all countries if it evolved international Customary. A treaty will evolve international customary law if it is norm creating, was universally acceded to or ratified by the nations of the world especially those nations who are most effected by the treaty. Finally the treaty must have been enforce for a sufficient amount of time. The rule is clearly norm creating, its states a clear rule that “privateering is abolished this as stand alone passage clear rule of conduct the privateering is abolished it furthers deals with general policy or norm and not a specific policy for achieving the general policy. The Declaration of Paris has been in force for 150 years, this amount time is clearly long enough for the entire international community to become aware of it. The final criteria requires that the treaty have wide spread ratification especially by States that the provisions are most relevant to. This criterion is probably the criteria that Declaration of Paris’s existence as customary law most falls short. While the Declaration of Paris had wide spread acceptance their where a number of countries which did not ratify including the US, Mexico, Spain and various non maritime state. Furthermore many countries which did not exist at the time it was ratified now exist and have not ratified it. In considering who is most affected by the ban on privateering it is countries with smaller navies who use privateering to supplement their navy. Many countries at the time of the treaty that refused to ratify where countries which where not considered naval powers at the time including US and Mexico. Countries which existed but had no maritime force also did not bother to ratify it. In addition many of the countries which exist now but did not exist contemporarily with the creation the Declaration of Paris have yet to ratify it. These countries are typically developing countries with very small navies. As such there is argument that Declaration of Paris does not fulfill the criteria of wide spread acceptance and therefore does has met perquisites necessary for a treaty provision to evolve into customary law. As such for countries that never ratified the Declaration of Paris there is an argument that they could be legally allowed to issue letters of Marque.

Iv. Piracy criminal procedure .

Piracy is defined by every nation as a crime. If an act is defined as a crime nations will have proceedings (a trial) to determine whether an individual apprehended for such an act is guilty as a mater of both fact and law guilty. The nature of the pirates right to trial and procedural due process rights varied from nation to nation. In some legal systems the pirates right to trial was a mere formality. However, in other nations such as Great Britan and U.S. the piracy trial gave the accused had substantial due process rights.

In England and its successor state of Britain had criminal procedures for piracy cases. While England, like every other Maritime state, took a hard line against piracy if a pirate actually was captured and turned over to civil authorities he would be provided with substantial due process rights. These rights included a trial by jury as well as the right to conduct a criminal defense. Before a pirate could even be tried he had to be indicted by a commission especially appointed for the purpose of investigating piracy. If a pirate was to be tried he would not be tried in a normal court but by the Admiralty which had a judicial branch with jurisdiction of all crimes committed by civilians on the high seas. This court was headed by the Lord Admiral of England. He was entitled to act as judge of all piracy cases though he usually delegated this function to his deputies who where regionally based. Depending on the time and place they went by various titles including Vice Admirals of the coast, “Admiral of Virginia” Judge of the vice Admiralty court etc. It had to be shown that the alleged pirate either committed an act of piracy or based on his conducted intended to commit piracy. The accused was also allowed the right to put forwarded a defense including the right to call witnesses. Some alleged English pirates where acquitted. If a party was acquitted he could not face double jeopardy. The English legal system was not flawless. Their were several examples of corruption at the admiralty courts. Also after 1698 England moved to a more inquisitorial trial model for piracy cases. this lessoned, but did not completely destroy safe guards of English law.

When the United States was formed in the 18th century it borrowed many aspects of the English legal system including the right to trial by jury, and various due process rights. The United States differed from some other countries as it did not assign Piracy cases to a functionally specialized tribunals or assign functionally specialized procedures but used the same Federal courts and procedures as used in any other federal crime. If a pirate was captured by American forced, before he could be brought to trial, he would need to be indicted by a federal grand jury. If indicted the court the case would be held in a Federal court presided over by a Federal Judge. The Federal Judge and Federal Courts have jurisiticition over all legal issues both civil and criminal which involve federal or are an area considered to be under federal jurisdiction (including maritime law). The prosecutor would likely be the U.S. Attorney a lawyer assigned to a regional jurisdiction charged with prosecuting all federal crimes that occur in their regional jurisdiction. Through out this procedure the accused would have due process rights including the right to a jury trial and the right against self incriminating. These rights where enshrined in the U.S. Constitution and thus could not be easily removed or ignored.

Great Britain and the U.S. where fairly unique in the degree of procedural due process it of offered captured pirates. If a pirate faced captured by Spanish or Portuguese authorities he likely would not live long enough to see a court. Such is because Spanish and Portuguese forces often gave Pirates vulnerable to capture no quarter. Governors also had limited summary execution powers in their role as the colonies military commander. If the capture pirate did live long enough to get to trial he might face a trial in front of the Audienca, the primary colonial court, or a military court. However he would not have the rights he would in an English court. For example a pirate could be tried in abstention before he is even apprehended. Furthermore these courts provided no right to a jury trial.

IV. The criminal procedure of piracy law.

If the society which captured the pirate recognized due process rights the prosecution would have prove its case. Here the prosecution would have to prove the accused is guilty of piracy. A strong prima facia case that is guilty of piracy is made if it shown that an individual is a member of a crew that either committed a piratical act or intends to commit a piratical act. If the accused is originally a privateer they would usually have to prove that he breached the terms of his letter of marque. The defense would try to refute the evidence presented to prove the prima facia case. In response to such a case, pirates had at their disposal a number of legal defenses. For example, an alleged pirate could be exonerated, if it is shown he performed his service for the pirate crew only based on duress. An alleged pirate would likewise be exonerated ig he could show a lack of sufficient intent. Of defenses included effective acceptance of the king’s pardon and benefit of clergy. Finally; perhaps the most unique pirate defense. For woman pirates, was pleading ones belly.

If an individual was served pirates only because he was under duress, even if acting deliberately, that individuals actions are considered involuntary. An individual is never liable for an involuntary acts. This defense is not theoretical pirates did sometimes press into service mariners from captured ships. There are two types of duress physical duress and legal duress. Physical duress is where someone is compelled by another to undertake activity out of fear that if does not he or someone else will face immediate physical harm or death in retaliation for not undertaking the desired activity. While an alleged Pirate would be freed if his actions where motivated by physical duress; the mere fact that a person could theoretically face physical violence if he did not engage in a criminal act, such as piracy, is not sufficient if his motive for the piratical act was something other then fear of physical retaliation. ‘Such would occur if an alleged pirated acted out of desire for the esteem of the other pirates or for a share of the treasure even there are other consequences for not acting. Similarly, if a persons motives change over the course from duress to another factor he is guilty of piracy for acts done after his motives change.

Besides physical duress there is also legal duress. Legal duress is where a person is motivated to act not out of fear of physical injury but out of fear of legal consequences of breaking the law. Admiralty law nominally holds that disobeying their captain’s orders is illegal. The law generally recognized that if a sailor broke the law in order to obey orders he would not be guilty. The legal jeopardy he would potentially face for not obeying the order made his breach of the law involuntary. While this rule might to apply to most mariners a pirate could not claim that legal duress as an excuse for following his captain’s orders to commit a crime. Such is because pirate has no legal to follow his captain orders. Such is because the captains authority is predicated on an illegal, and thus unrecognized agreement, that a group will combine under the captain’s leadership commit piracy. However, an alleged pirate could claim legal duress as a defense if piratical act occurred on what was initially a privateering mission. This circumstance would occur if sailor is on privateering but on this missions in ordered to commit piratical acts. As the mission had began as a legal mission the crew member would be nominally bound to his captain’s orders and thus would feel legally compelled to follow orders even if the orders are illegal. However, like physical duress legal, an alleged pirates feeling of legal duress would only be an adequate defense if fear of legal obligation is what actually compelled him to commit the illegal act.

For both physical duress and legal duress the duress must the motivating factor for the piratical act if that is to be a defense.

In determining whether duress was the true motive for, piracy courts realized they where ill equipped to read a person’s heart and mind. They therefore developed an objective test. In evaluating the claim of duress as the alleged pirates motive, the courts would look at whether he accepted the ill gotten prizes. The courts saw the receiving of a share of pirates prizes as distinctively reserved for members of the pirate crew. By accepting the share pirates share an individual was signifying his desire to be part of pirate crew or at least to reap the benefits of being a pirate. If individual was serving to advance himself as a pirate or receive Pirate treasures those would be his motive, and he could not be considered as working under duress.
To be guilty you must have mental intent. If your actions where based on a mistake in fact you would not have the required mental intend and not be guilty. For example the Henry Morgan was charged with piracy because he attacked Spanish assets after his letter of marque had expired based on peace with Spain. Morgan successfully defended his actions by claiming a mistake in fact. He could not be guilty of piracy because he did not know that his peace had been declared.

In their defense Pirates sometimes “pleaded the Kings pardon” and therefore claimed immunity from prosecution. If the alleged pirate had received the King’s pardon the pirate would be immune from prosecution for all crimes committed before receiving this amnesty. Periodically the English government would proclaim a conditional amnesty known as the known as the Kings “Pardon”. This was done on number including in 1698 (known at the time as the act of Grace) and later in 1718. To be eligible for the amnesty a pirate would have to surrender by the deadline set in the proclamation. He would also have to abide by any other conditions set the amnesty. The proclamations sometimes specifically exempted particularly heinous pirates. Another piracy defense which is now anachronistic is benefit of clergy. The benefit of clergy is a right that members of the clergy had to only be tried in church courts and the right to be immune from prosecution in secular courts. If a person plead benefit of clergy he essentially was asserting that the secular courts lacked personal jurisdiction over him and he should either freed or reassign him to the notoriously lenient church courts. On its face this would seem not to apply to pirates since few if any where clergy men. However, pirates could be freed under this doctrine because the test to determine whether one was a clergyman was simply to recite one bibical passage of the Judges choosing. If he recites the passage correctly then, for purpose of that one case, the accused is irrebuttably considered a clergy man and no evidence can be admitted to contradict the accused plea even if the judge had reason to believe the accused was not clergy. The ease of proving one was clergyman would seem to invite fraudulent pleas as means for an accused escape punishment; indeed it was this way by design. During the 16th, 17th and 18th centuries English law was extremely harsh. The English government and judiciary saw the will full manipulation of the benefit of clergy as a way of lessoning the harshness of the English legal and criminal justice systems without fundamentally changing them. This was by no means a full proof legal defense the judge had discretion on what bible verse would be recite and could simply choose a verse the less educated pirate would be unlikely to recite verbatim. This defense generally was not available for certain crimes such as murder and rape. Therefore, if the pirate killed someone he could face harsh justice for that. This defense did not last the entire age of piracy. The piracy act of 1717 made the Benefit of clergy inapplicable in piracy cases.

Finally one possible defense strategy used by pirates was “pleading ones belly.” This defense could only be used by female pirates who happened to pregnant at the time of conviction. Under English law a woman convicted of a capitol crime she would receive a temporary reprieve from capital punishment if she was pregnant and that pregnancy could be medically verified. This defense was used in a piracy case twice by female pirates, Ann Bonny and Mary Reed. In Ann Bonny’s case this temporary reprieve probably saved her life. It seems that as the months seeing this young single mother spending her days in the squalor of a colonial jail ultimately created, in her jailer’s, pity for her. As a result of this she apparently was released without formal authorization or otherwise was allowed to escape with no attempt made to apprehend her or even record her status as fugitive.

If these defenses did not work the convicted would face punishment until the mid 19th century the punishment was almost always death.

V. Conclusion.

Piracy like any other field had applicable laws. Some of these laws punished piracy others effectively legalized piracy. However they all attempted to bring order into something which fundamentally lacks order.

Criminal Justice Education – Getting an Online Degree in Criminology

The field of criminal justice has fast become a services industry in the US in recent years. The system of courts and corrections is ever expanding and requires numbers of dedicated and career oriented professionals in every aspect of criminal justice from corrections to process serving. The criminal justice system in North America consists of law enforcement, policing, courts and corrections. An education in criminal justice can lead prospective graduates and trainees the opportunity to begin careers in every area from crime scene investigation to federal intelligence.

Now-a-days, while global recession ravages economies all over the world, professionals in the criminal justice industry are stretched to the limit due to the need for manpower. Such professionals find it difficult to further their careers by improving their education and skills profiles for the fact that there is simply no time or money available to most people to be able to. The same is true for most professionals in other industries who wish to enter the criminal justice system (only as workers!). Online criminal justice education (online criminology courses and online probate courses etc) provides people in any field the opportunity to receive criminal justice training online, at their own convenience, requiring lower fees, less time and no classroom hassle.

Although the opportunities available to individuals may vary with their education and experience, the most lucrative areas in criminal justice are criminology (which is also the most extensive and difficult to study), probation, and correctional service (in 2006, 90% workers from these areas earned more than $30,000 annually while at least 50% earn between $35,000 to $56,000 1). Specialists in criminology can potentially earn several times more.


Criminology includes the study of incidence and forms of crime as well as its causes and consequences. These also include social and governmental regulations and reactions to crime 2. Education in criminology includes certifications as well as degrees at any level from undergraduate to doctorate (indeed many institutions offering online Criminal Justice education even offer a PhD in criminology).

There are many institutions that offer criminology education. Make sure to choose one which provides an accredited certificate or degree at the end of the course. Accreditation information is usually provided along with course description. The modes of study and delivery of instruction also varies, with most institutions offering blended/ optional-blended programs (the students choose lectures, videos or slides and can alternatively attend classes).

The following are only some of the categories of study in criminology:

Crime, Justice and Punishment

This is the study of the structure and process of the criminal justice system. The study imparts understanding of how courts balance competing interests and how penalties and punishments are shaped.

Community Crime Prevention

This is a study on how crime occurs and is prevented in communities. This study involves identifying crime, formulation strategies for prevention, implementing and finally evaluating the outcome.


This is study of victims and their relationship with society and how it is affected due to crime.

Drugs and crimes – everyday Life

This is the study of the criminal abuse of drugs and alcohol, the reasons and the factors important for prevention.

Gangs and Crime

This is a study of gang mentality and violence in gang behavior. The study includes focus on youth subcultures (street gangs), organized crime and terrorism.


1. http://www.bls.gov/oco/ocos256.htm

2. Wikipedia

It Is Necessary to Place Limits on Democracy in Order to Promote Human Rights?

Ex Justice Michael Kirby defines democracy in Australia as:

[a] sophisticated form of government which involves the general ability of the will of the majority to prevail but in a legal and social context in which the rights of vulnerable minorities are respected and defended

It must be argued that this succinct statement illustrates, expressly and implicitly, the potential for an inextricable relationship between democracy and human rights. The defending of human rights can only exist within a democracy, and conversely, the ability of anyone to raise their hand and claim a human right to be defended is a fundamental element of a democracy.

What are “human rights”? It must be argued that human rights are a mere concept, intangible ideals, principals within the realm of philosophy. The Universal Declaration of Human Rights says:

All human beings are born free and equal in dignity and rights

It must be argued that there is a distinct difference between the concept of human rights and the interpretation and application of human rights in a social context.

The interpretation of our human rights can be derived from the UDHR, other HR treaties and subsequently our own state and federal laws. However the language used in these instruments is left intentionally vague and ambiguous to allow different meanings to be inferred from the words. As time progresses and the nature of a normative society changes, values, deviant and moral actions change, the law changes slowly after to accommodate for the change in society. Drinking alcohol and driving is a good contemporary example of this. When talking about The Constitution Justice Kirby says:

The words [of the Constitution] take on their colour with the change in circumstance and attitudes

So we are able to apply the concept of rights to our society through the judicial and legislative processes, which are the checks and balances within a democratic system. For example, we have a right to free speech at Article 12:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

But does that mean we are allowed to say anything we want, wherever we want? It would have to be argued that we do not as various pieces of legislation have been enacted to stop “hate speech” and “defamation“. This must be argued to be a policy consideration and a formal social control mechanism. This illustrates how human rights in their purest form have restrictions put on them when applied in a social context. Anti-Terrorism legislation in Australia and across the world has seemingly trampled over human rights with arguably deplorable and undemocratic notions such as preventative detention and the abandonment of due process of law. However it should be argued that this type of legislation is a reaction to a real or perceived problem to preserve public safety. The question has to be asked if this is an acceptable trade. It was Benjamin Franklyn who wrote:

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

Is it necessary to restrict the democratic voting rights of offenders in prison? It must be argued that the democratic right of citizens of a country to have their say in the election process is a fundamental cornerstone of democracy and without it the country wouldn’t be a democracy. The Constitution Act implies this at s7 and s24 that the Senate and the House of Representatives be:

directly chosen by the people

It should be argued that the limits of this democratic process to certain members of society have been placed because of policy considerations involving social normative ideals. The “moral panic” drummed up in the press, fear and ignorance of the whole prison / rehabilitation process is a contributing factor.

It must be argued that the concept of eligibility is very important in the application of human rights in a democracy. Prisoners for example, are not eligible to vote, not eligible to liberty and so on. They have essentially lost the ability for those rights to be applied to them under certain circumstances for the sake of social order, punishment and protection. Does this concept of eligibility limit democracy? It should be argued that an action that is for the benefit of the majority of people and backed by the majority of people is a democratic action. As Justice Kirby says in the opening definition, democracy is the ability of the will of the majority to prevail.

What is “the majority“? The majority of any group is a complex and difficult question. There is the actual number of eligible voters, and then a vast and varied amount of subgroups within that number. What about the majority of Shiites and Sunny Muslims within that group, and so on. It should be argued that access to rights is based upon a number of normative, social, political and cultural eligibilities. Using the objective standard of “the reasonable person“, in Australia this is said to be “The man on the Bondi Tram” it is possible to start constructing an argument about which rights are to be assigned to which people, or rather the eligibility of people to have certain rights applied to them. For example the idea of death as punishment for apostasy, which is implied in the Koran could be argued to be a right under both Sharia law and under Article 18 of the UDHR which says:

Everyone has the right to freedom of thought, conscience and religion… and freedom… to manifest his religion or belief…

But Article 18 also says:

this right includes freedom to change his religion or belief.

It must be argued that no “reasonable” person could agree to death, the death penalty is abolished in Australia and Article 18 mandates the right to change religion, therefore, even though the concept of that right might exist, they would not be eligible to the application of this right in Australia for societal, policy and religious reasons and a democratic consensus by the people.

Reading a speech by Justice Michael Kirby he said:

There is a tension, even a contradiction, between democracy and protection of fundamental human rights. The tension arises because, if human rights are truly “fundamental”, even democracy should not be able to override them. In this sense, fundamental human rights impose a check on democracy, and deliberately so.

The idea of a “fundamental” set of human rights is a great idea and arguably exists in the philosophical realm of human rights as something to strive toward; however it must be argued that the application of these rights across the world would take on all different shapes and colours based upon social mores and context within the society. As it says in Melbourne University Law Review:

It is a myth that rights are ‘absolute trumps’ over majority preferences, aspirations or desires. In fact, most rights are not absolute. Under human rights instruments, rights are balanced against and limited by other protected rights, and other non-protected values and communal needs. A plurality of values is accommodated, not just rights. Moreover, in jurisdictions with human rights instruments that adopt an institutional dialogue model, the specific balance of the pluralistic values is assessed from a plurality of institutional perspectives – usually the executive, the legislative and the judicial.

When is it OK to limit democracy in favour of human rights? It could be argued that during war, genocide or other international atrocities it may be permitted for a democracy to act in an un-democratic way. For example, conscription and forced military service, frozen assets and restrictions on the free movement of peoples.

Another argument for a limit placed on democracy came about in the Northern Territory Intervention by the Howard Government in 2008. To enable them to implement this intervention they had to suspend the Racial Discrimination Actto allow this to occur. Allegedly, the rights of vulnerable members in those societies, namely women and especially children, needed protecting so much that the government had to suspend a racism act to enable this to happen. It would have to be strongly argued that this is in fact a racist action, bearing in mind that it would have been an illegal action under the Act. The idea of a government suspending a certain law to enable them to breach that law seems to be a very dubious and un-democratic thing to do.

In conclusion it must be argued that in some instances there may be some cause to limit the democratic process to all or certain members of society to enable the government to do some things of national importance. It should be argued that these instances are in fact extremely rare and the opposite is far more common. As society dictates, the will of the normative majority seems to supersede the application of rights to some members of the community, some of the time.

However, it could also be argued the opposite way, in that because the consensus of the public overrides the application of some human rights, if these rights are to be implemented, that the executive or legislature would have to ignore the will of the majority to get them passed. It should be argued that this is a strong case for limiting democracy to promote human rights, but it must be pointed out that this is in fact an action which very seldom happens.

What You Need to Know About “Alternative Dispute Resolution” in Employment Law Disputes

Alternative Dispute Resolution is not new. What is new is the rapid shift to private mediation and arbitration of cases that traditionally went to trial. If you have an employment or commercial dispute, the odds are increasing daily that you’ll find the courtroom doors closed to your case.

This article will provide some basic description of the Alternative Dispute Resolution process, and its costs, and also describe the trend toward using mediation and arbitration.

First, some clarifying descriptions: mediation is a voluntary submission of a case to a neutral, paid “deal broker” whose goal is not justice but closure. The parties to the mediation are not bound by the result, and agree that the discussions in the mediation will be kept confidential. There is no evidence taken in the mediation. The mediator is not an adjudicator of the facts, and reaches no decisions. He or she is certainly no dispenser of justice. Mediators have said to my clients in the opening session, “This will sound strange, but in this process today we will not be focused on either the truth or justice. Today, we have only one goal: to settle your case.”

The second major “Alternative Dispute Resolution” tool is arbitration. Arbitration is the private resolution of a dispute compelled by a contract between the parties, and requires the submission of evidence. The arbitrator acts as a judge of the facts and decides the issues of law. His or her decision is often final, with very limited rights of appeal to a court. The arbitration agreement often specifies the arbitration service that will provide the arbitrator. That arbitration service often has already developed a set of procedures and rules that will guide the arbitrator and parties on how the arbitration will be conducted. However, the parties can agree to different guidelines in their contract.

“Alternative Dispute Resolution” can be expensive. Successful, entrepreneurial mediators in Southern California in employment disputes, for example, command fees between $4,000 to $10,000 per day of service, the parties often splitting the cost of the mediation. Most employment law mediations require one full day. Complex cases, and certainly class action mediations, require multiple days.

Arbitration costs are also quite high. An Arbitrator may charge “per diem,” meaning a flat fee per day, or by the hour, but fees of $4,000 per day of arbitration would be considered normal in Southern California employment law disputes. An arbitration, like a trial, involves witness testimony, demonstrative evidence [charts, pictures, videos] and documentary evidence [often emails, data reports, memos, business records]. The result is that arbitration can consume a week of time or longer, and the expense can be substantial. The parties are also paying for their attorney’s time and any expert witness time as well.

Compare these costs to taxpayer supported access to the courts, and you see that the costs of justice has been shifted, and shifted generally to the disadvantage of the individual challenging misconduct by a corporation or other wealthy opponent. California courts have mitigated this burden on the employee by holding that in discrimination cases, the cost of arbitration will be no greater than what the employee would have occurred at a traditional court trial. Also, the California courts have held that they will not enforce arbitration agreements that are not basically fair and balanced in allowing the employee the benefits of preparing and submitting the case for arbitration. That includes access to evidence and basic “due process” in the conduct of the arbitration.

The general rule is that the winner recovers the “costs” of arbitration, which would include the cost of the arbitrator. However, unless there is a statute or written agreement between the parties for recovery of attorney’s fees, each side must pay his own attorney. In employment discrimination cases, there are just such “fee shifting” statutes favoring the employee. Also, employees often enter contingency fee agreements with their lawyer.

Mediation is an informal process. The parties usually meet in the mediator’s offices, and each occupies as separate conference room. It has become customary in my mediations in Southern California that the parties do not even see each other during the day. Instead, the mediator shuttles between them, stating to each the weaknesses [and occasionally the strengths] of their positions. However, the mediator is the voice of reason and dispassionate analysis. The mediator is not there to rubber stamp a party’s advocacy of why his case is so great, but to point out how badly things might turn out for that party if the case proceeded to trial. The goal is to provide a dose of caution and prudence, thereby inducing a party to avoid the risks of litigation by a written settlement, often that same day.

Arbitration is a formal process, but in my experience, not as formal as a courtroom, and with a refreshing degree of flexibility in fashioning the way the case is presented. Much of that flexibility depends on the individual arbitrator. Rules of evidence still apply, but arbitrators are more likely to allow evidence, subject to assessing its weight and credibility. However, the arbitrator is hired by the parties to conduct the arbitration according to the terms of the arbitration agreement, which may set forth strict procedural requirements. The place of arbitration is also often in the facility provided by the arbitration service, but without the usual pomp and gravity associated with a courtroom.

Most significantly, the arbitrator is accessible before the arbitration, often by conference call, to manage the case as it proceeds to hearing. The arbitrator in this way can quickly hear the arguments and decide a motion or resolve a discovery dispute, thereby keeping the case on track. Often, the timing of key events in the arbitration, such as when depositions will be completed, or a key motion will be heard, is arranged by consultation with the arbitrator followed by a stipulation of the parties. Thus, the process is more efficient because the parties have more access to the decision maker. Finally, arbitration often are concluded more quickly than trials. This is because there is no jury, and because court judges, unlike arbitrators, have hundreds, often thousands, of other cases to manage at the same time, and so must interrupt the trial calendar to attend to them.

The United States Supreme Court has taken a clear stand supporting the right of parties to agree to arbitration under the Federal Arbitration Act. The Court has given approval to often one sided agreements favoring the more financially dominate party who drafted the agreement, such as large financial institutions. The California Supreme Court has tried valiantly to fit notions of fairness within the sweeping mandate of the U.S. Supreme Court. The California Courts have held that under basic common law contract principles, an arbitration agreement must not be so one-sided in favor of the employer as to be “unconscionable.” This State-Federal battle continues, but the obvious ultimate victor will be a conservative U.S. Supreme Court, and the trend is already toward greater enforcement of arbitration agreements meeting the minimal requirements of federal law.

In conclusion, “Alternative Dispute Resolution” is the trend of the 21st century unless the State and Federal Judiciaries take measures to make the courts more accessible through the use of internet filing and service of process, video conferencing, and expedited jury trials. Also, repeal or amendment of the Federal Arbitration Act is indicated if the general population is to continue to believe in the American concept of equal access to justice.

Proposal to Reform New York DWI Laws Would Do Harm

“First, do no harm,” counsels the Hippocratic oath. Good doctors still honor these words – and so should legislators considering revisions to New York’s drunk driving laws.

Brendan Tully, a Democrat who ran for a seat in the state assembly, proposed a fundamental change in New York DWI law. Specifically, the proposal was to amend the law so that drivers charged with DWI are no longer allowed to plead to a lesser charge that is at the level of a traffic infraction. Although Tully did not win a seat in the Assembly, the proposal he put forward could come up again. Its flaws should therefore be confronted.

The premise of the proposal is that, under current law, the practice of allowing drunk driving charges to be plead down to a non-criminal offense amount to a loophole in the law. But this practice is not a “loophole”; it is a specific provision in the law whose removal would be a tremendous hardship for first-time, low-level offenders. Ending the ability of first-time, low-level offenders to plead down to a non-criminal offense would also greatly threaten the efficiency of the justice system. With so little incentive to plead, more and more cases would go to trial, causing long delays and multiplying inefficiencies.

To be sure, a proposal that seeks to make streets and highways safer by cutting down on drunk driving would be welcome. The statistics are sobering. Last year, according to Mothers Against Drunk Driving, 321 people lost their lives in New York State because of drunk driving.

Undue Hardship

Stigmatizing first-time, low-level offenders by removing the ability to plead down does not make sense. Doing so would create a form of modern-day scarlet letter that would unduly burden their job prospects and their entire futures.

Under present law, no conviction in New York State for DWI or any other crime can be expunged. A person who is convicted of Driving While Ability Impaired by Alcohol (DWAI), however, can truthfully state on an application for licensing, employment or admission into college that they have not been convicted of a crime.

This distinction is crucial. Especially for young people, a conviction for a crime could carry lasting consequences that could affect the ability to get financial aid, obtain a professional license or find suitable employment. Even those who are currently employed, such as teachers, could find their professional licenses at risk.

Under current law, prosecutors typically offer first-time offenders a chance to plead guilty to the offense of driving while ability impaired (DWAI), if offender’s blood alcohol content (BAC) levels were low and there were no injuries. To disallow prosecutors the discretion to tailor their approach to first-time offenders amounts to attacking the problem of DWI with a one-size-fits-all hammer when what is really needed is a scalpel.

Think about it. Is it really fair to treat a first-time offender who has a BAC level of.08 – the legal minimum to support a prosecution for DWI – the same as a person who has a BAC of.17? Under a proposal such as Tully’s, both persons would have a scarlet letter of a criminal conviction for the rest of their lives.

Effect on the Justice System

Besides the undue hardship that could be inflicted on low-level, first-time offenders, a proposal such as Tully’s would also be likely to create severe backlogs and inefficiencies in the court system. With the incentive removed to plead to a non-criminal offense like DWAI, more and more defendants would insist on going to trial.

At a time of tight resources, it would be very difficult to equip the system with enough prosecutors, enough juries, enough court personnel, and so on in order for it to work effectively. The result of removing the incentive to plead down would therefore be to create a bottleneck in the courts – causing excessive delays and mounting frustrations for all concerned.

Leandra’s Law

New York’s recent experience with Leandra’s law demonstrates the necessity of guarding the efficiency of an overloaded justice system. This law – named after an 11-year-old girl who died in a minivan crash – makes it a felony to drive while intoxicated with a person under 16 in the car.

Leandra’s law also led to a new requirement that the vehicles of first-time DWI offenders receive ignition interlock devices, which prevent a vehicle from starting if the driver’s blood alcohol content is over a certain point.

The challenges of enforcing Leandra’s law have strained New York’s already overtaxed criminal justice system. For example, caseloads for probation officers, who are needed to enforce the ignition interlock requirement, have increased substantially. Probation cases would surely skyrocket even further, if a proposal such as Tully’s were to pass.

All Cases Are Not the Same

Amending the law so that drivers charged with DWI are no longer allowed to plead to a non-criminal charge would do more harm than good. A parent who is way over the legal limit with a child in the back seat is justly the source of outrage. But the law has to be able to distinguish that case from that of a first-time offender with a relatively low BAC who caused no injuries.