Alternatives in the same system
Your German example is not what I was getting at - a direct clash between the Criminal Code and the Honor Code (as has been suggested in Mr. Ayala's case and scripted in a A Few Good Men). In your Roe-Hare case, a mistake of fact is remedied by a diversion of the elderly gent to the Honor Court, where he is punished. That is simply having two different court systems for the same factual offense.
My goose pond example was inadequate since it could involve an element of "mistake" (shooting too many geese). Give you one that is clearer. Same pond on another day, and a gaggle comes in with 3 geese downed (1 for each hunter). Other people had been there the day before and left quite a few geese downed but not where they could be readily picked up.
Bruce, who's a young animal (not an elderly gent) has to get the three - so, he takes some rope, circles the pond and swamp and comes back with 10 geese (the 7 from the day before nicely chilled - this is Northern Michigan). So, I walk out with 3 geese - illegal because the crime is possession over limit. No Honor Court for doing that - in fact, as far as we were concerned there should have been an Honor Court if we left them there.
You could say the same about homemade hooch (nothing like first run clear white). But, illegal unless you have a Federal permit. No alternative Honor Court there, either.
So, there are Honor Codes arising from the particular culture which are contrary to the Positive (enacted) Law on the books. Now, as Reed poiints out, and you agree, some Honor Codes suck - maybe accepted (or kept in the closet) under some forms of Sharia Law, but not culturally or legally acceptable here. So, Honor Codes may be parallel to the Criminal Code (your Roe-Hare); or, they may collide with the Criminal Code - some in a benign way; some in a malignant way; and, some, it depends.
An Honor Code can be just as predictable as Positive Law, if you know the rules. As you say, an outsider doesn't know the rules, so Positive Law is the fallback. As you also say, there is an even larger chance of collisions where the Positive Law is imposed by an occupying power.
BTW: I hate the term "Rule of Law", unless one first defines what laws are to rule. Hell, AQ operates under a Rule of Law (as attested by UBL's & Zawahiri's very legalistic writings).
Context, context, context
General message -
Try to give a consise fact situation in any hypothetical, or that underlies any opinion. Context is everything in these cases.
At the U of Mich, homicide was the focus of 1st year Crim Law - a combined Law and Procedure course since so many of the key procedure cases have been capital cases. As Slap pointed out in a prior post, there are many degrees in the criminal charges. And, there are many degrees of justification, including shooting the soldier who is not directly threatening you.
The commandant should read: Thou shalt not kill, except ........
You know, Slap, I think they're on to something.
I thought that was a definite possibility but I wouldn't have considered it a legal defense. Which is why they're Attorneys and I'm not... :o
True dat, Slap, true dat ...
Quote:
Well I finished talking to my defense attorney friends and they are a strange lot Their opinions were wild to crazy and everything in between.
:D
I think we are dealing with three kinds of self-defense by an individual:
1. Immediate self-defense - OK
2. Pre-emptive self-defense - maybe; it depends
3. Preventive self-defense - probably NOK
What your "strange lot" defense attorneys are proposing is really preventive self-defense - scaring the hell out of the bad guys so they won't do the same bad thing in the future - a general deterrence theory.
This concept ties into the issue of reprisals (American Pride's point) - and into the extent of national self-defense under the UN Charter and I Law. So, the topic has an across the board application, so far as COIN is concerned. I'd guess that similar issues are not uncommon at SOCOM, for example.
I am reaching the conclusion that Ken's initial assessment of the defense lawyers' "wild to crazy" opinions was correct:
Quote:
I wouldn't have considered it a legal defense ...
The problem is explaining all of this without writing a book. Have to think about that for a bit.
Meanwhile, Slap, you might find it worthwhile to ask your prosecutor friends what they would most fear as a defense if they were prosecuting Mr. Ayala.
Along the same lines, I might toss this topic at a couple of criminal court judges I know - meeting with one next week about something else.
PS: If Mr Ayala actually went through the thought process that the defense lawyers are suggesting, he certainly premeditated and deliberated about the shooting. So, instead of 2nd degree murder (the present charge), it should be 1st degree murder - if the defense fails. Blowback !