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Thread: Honor, murder and "the law".

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    Council Member 120mm's Avatar
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    Default Honor, murder and "the law".

    In "The Whole News" forum, Featherock made a post that has actually been eating away at my thoughts. With the kind permission of the Council, I'd like to explore some of the concepts that are presented in this post. My thinking on this issue is somewhat all over the map, and I figured if someone would shoot holes at it for awhile, I could clarify some of the issues. So, here goes:

    There's no "thinking" about it. The facts are the facts. What he did was against the law, pure and simple. An honor code is just that, a code, a highly subjective set of rules of conduct that different cultures define differently. An honor code is not the same thing as the rule of law as codified in instruments like the Geneva Conventions. For instance, a Marine wouldn't be tried in court for leaving behind a squad member, even though doing so would break a deeply held honor code among Marines (and other service branches, obviously).

    While the law is subjective -- otherwise, why would we need lawyers (some would argue, rightly in a lot of cases, that lawyers do more to obfuscate and frustrate the law than they do interpreting it, the DOJ under Bush being a great example, e.g, Gitmo) -- the fact is all soldiers and contractors operating in a combat zone have to operate under the law, regardless of what the enemy does.

    Does it hurt our COIN efforts? I would say yes. This specific incident? I don't know. This incident paired with other incidents like it (PMCs firing on civilians in Iraq, the Gitmo disaster) have a incredibly deleterious effect on COIN efforts and America's standing in the world.
    This post was in response to a post where I suggested that under some cultures, "honor" specifies that one breaks the law, and then presents themselves for punishment. Probably the most noteworthy example is a culture like the pre-modern Japanese culture, which celebrated the concept of "on" (I hope I'm getting that right) where warriors were expected to avenge perceived honor violations and then commit suicide or present themselves for punishment. (As an aside, to be denied the right to suicide or punishment was perceived as "unbearable" and "disgraceful" under that code).

    Similar, but more western is the mythical "cowboy code", (under which I believe I was raised, obtw) which possessed an sense of honor, but did not have a suicide component and only sometimes had a punishment component. In other words, anonymous vengeance was sometimes seen as acceptable, and even preferable to public vengeance.

    Finally, one can consider honor and the concept of honor in areas like the Middle East or in Africa, where honor killings and tribal/familial vengeance are portrayed as being part of the culture.

    If you consider the equity of outcomes, I am finding it more and more difficult to push western "law" as being superior to "honor". After all, under Western law more often than not, the one with the most cash wins. Also, the one with the best I/O campaign in the press often appears to win.

    Even with the consideration that law is just, in reality law is just the potential cost of an activity. Just because murder is against the law, it doesn't mean you cannot do it. It just means that if you wish to murder, it costs XX years in prison. It is futile to argue "law" with someone who has deemed the cost of whatever activity as an acceptable cost. For someone who values honor more than anything else, a tribal code is not subordinate to law.

    Nearly every poster on multiple forums where I read, have asserted that Mr. Ayala, the PMC accused of murdering the apprehended fire-attacker must have been operating under a certain level of "rage" to have shot an allegedly restrained attacker, if initial reports are true. I would suggest that perhaps that it is also possible that Mr. Ayala may have actually thought his actions through. There IS precedent for individuals deciding that the consequences for an action were worth the "crime".

    My "honor brain" tells me that an individual who determines they've failed in their core mission to the extent that someone else was maimed or killed, the concept of vengeance and then punishment would be cathartic, and relieve some of the guilt involved with the initial failure.

    On the topic of International law, while it is often advantageous to appear to be adherent to that mythology, in truth, Nations still "do what they can, and suffer what they must", and international law is still a bad joke. Especially with the rise of the non-nation actor and apologists for non-nation criminals, such as the Somali pirates. Except for the occasional dead pirate, the Somali pirates will never pay any legal cost for committing piracy. In this way, they expose the laughable nature of "international law".

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    Council Member Ken White's Avatar
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    Default I'm with you.

    In that referenced earlier thread, Featherock said; "...Under the law he's wrong. And the law is all we have."

    I responded "... B. Your under the law statement is correct -- if it's proven he was wrong; guilty until proven innocent is not a good plan. C. The law is not all we have." So I obviously agree with you in principle

    You said
    "If you consider the equity of outcomes, I am finding it more and more difficult to push western "law" as being superior to "honor". After all, under Western law more often than not, the one with the most cash wins. Also, the one with the best I/O campaign in the press often appears to win."
    and I strongly agree with that. There are many who believe that the 'rule of law' is a universal fact -- it is not. They also believe that such rule is necessary for peace and tranquility -- it is not. Further, they seem to believe that if a law is written and codified that all will obey other than a very rare occasional and aberrant person -- not realizing that is far from correct; more laws are ignored than obeyed.

    I always wonder how many that strongly invoke "the rule of law" and push for various foolish -- even stupid -- laws that try to direct human behavior and mores are themselves closet speed limit breakers, cheat on their taxes or wives, sluff parking meters or throw trash on the street...

    Lastly, you say "
    On the topic of International law, while it is often advantageous to appear to be adherent to that mythology, in truth, Nations still "do what they can, and suffer what they must", and international law is still a bad joke. Especially with the rise of the non-nation actor and apologists for non-nation criminals, such as the Somali pirates. Except for the occasional dead pirate, the Somali pirates will never pay any legal cost for committing piracy. In this way, they expose the laughable nature of "international law."
    Excellent example showing the futility of the rather ridiculous belief that "...the law is all we have."

    If it weren't for a sense of individual honor, not a single law would be worth the paper it was printed upon. Honor transcends the law.

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    Council Member reed11b's Avatar
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    Default

    Ken I agree at least in part w/ everything you and 120mm are stating, but I feel that there is a very needed addendum to what you are saying... Laws must be enforceable to have any effect. Enforceable laws do have some power and utility.

    Quote Originally Posted by Ken White View Post
    If it weren't for a sense of individual honor, not a single law would be worth the paper it was printed upon. Honor transcends the law.
    Very True. Look at societies were the enforcers of the law are corrupt.
    Reed
    Quote Originally Posted by sapperfitz82 View Post
    This truly is the bike helmet generation.

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    Council Member Ron Humphrey's Avatar
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    Post This particular thread

    May carry more relevance then might think given:

    If most can agree that times of economic instability and
    Associated problems tend be find more prevalence in
    "Law breaking" then it might be of note that it is during
    Times of duress when "codes" tend to be the ONLY thing
    That keeps many from straying from the right path?
    Any man can destroy that which is around him, The rare man is he who can find beauty even in the darkest hours

    Cogitationis poenam nemo patitur

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    Council Member slapout9's Avatar
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    I am not sure who said it but I disagree with the law is subjective quote. Good law is very objective. There is nothing subjective about shooting someone who is in custody. What I think he meant to say was "mitigating" circumstances, that is what the lawyers would argue in court. jmm99 this is straight up your alleyjump on in.

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    Council Member 120mm's Avatar
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    Quote Originally Posted by slapout9 View Post
    I am not sure who said it but I disagree with the law is subjective quote. Good law is very objective. There is nothing subjective about shooting someone who is in custody. What I think he meant to say was "mitigating" circumstances, that is what the lawyers would argue in court. jmm99 this is straight up your alleyjump on in.
    So-called "good law" is only "good" if you share the same cultural background and decision-making process. If you look at it without emotional loading, our "laws" are more like a form of pricing. If you want to murder someone, there is a price tag attached, which price is completely negotiable. "Mitigating circumstances" are a euphemism for "bargaining" on the final price.

    If one's culture requires vengeance, (which, of course, is primitive and inferior to our incredibly perfect and objective Western Legal System [tm]) then being prohibited from putting down someone who needs it, badly, whether in confinement or no, that pesky law prohibiting it, is highly subjective in nature.

    So lawyers are pretty much useless for debating the "rightness" or "wrongness" of law. They are only the minor functionaries whose job is to debate the price.

    Of course, you can always "steal" the "product" by getting away with the crime.

    Of course, in reference to Slapout's subjective versus objective argument:

    There is nothing subjective about shooting someone who is in custody.
    How about when the government decides they can shoot someone who is in custody?

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    Council Member slapout9's Avatar
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    Quote Originally Posted by 120mm View Post
    So-called "good law" is only "good" if you share the same cultural background and decision-making process. If you look at it without emotional loading, our "laws" are more like a form of pricing. If you want to murder someone, there is a price tag attached, which price is completely negotiable. "Mitigating circumstances" are a euphemism for "bargaining" on the final price.

    Pricing is the punishment phase of the law and yes it is priced in degrees 1st,2nd,3rd,etc. Felony or Misdemeanor. Murder often has the price tag of Capital Punishment at least in Alabama.

    If one's culture requires vengeance, (which, of course, is primitive and inferior to our incredibly perfect and objective Western Legal System [tm]) then being prohibited from putting down someone who needs it, badly, whether in confinement or no, that pesky law prohibiting it, is highly subjective in nature.

    We will just have to disagree on that, the criminal statute that defines murder is about as objective as one can get. I would be the last person to ever tell you the Western justice system is perfect.

    So lawyers are pretty much useless for debating the "rightness" or "wrongness" of law. They are only the minor functionaries whose job is to debate the price.


    Lawyers do debate rightness or wrongness of a law all the time. Laws are challenged all the time.

    Of course, you can always "steal" the "product" by getting away with the crime.

    Yes you could do that.


    Of course, in reference to Slapout's subjective versus objective argument:
    How about when the government decides they can shoot someone who is in custody?


    Then the Agent acting on behalf of the Government would be guilty of a crime.


    sorry 120mm I messed up that double quote button thingy.
    Last edited by slapout9; 11-25-2008 at 02:29 AM. Reason: try to fix stuff, but couldn't

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    Default Due Process

    Or haven't you heard? The 5th Amendment's gone global. Fair trials for everyone!

    Boy, you can almost hear democracy breaking out.

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    Default True dat, Slap,

    jmm99 this is straight up your alley
    but I'm just in lurking and listening mode - has all the makings of a good bar brawl.

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    Council Member 120mm's Avatar
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    Quote Originally Posted by slapout9 View Post
    [/B]

    Then the Agent acting on behalf of the Government would be guilty of a crime.

    sorry 120mm I messed up that double quote button thingy.
    I know what you mean, but what you just said is that the executioner on death row is guilty of a crime....

    After all, he kills a man who is helpless and in custody...

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    Council Member 120mm's Avatar
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    Quote Originally Posted by jmm99 View Post
    but I'm just in lurking and listening mode - has all the makings of a good bar brawl.
    I'm buying the drinks afterwords, and we promise not to break any chairs or tables....

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    Council Member slapout9's Avatar
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    Quote Originally Posted by 120mm View Post
    I know what you mean, but what you just said is that the executioner on death row is guilty of a crime....

    After all, he kills a man who is helpless and in custody...
    Don't agree, the person on death row has had due process...a trial and found guilty. The other has not.

    jmm99 no brawls here, just good discussion. 120mm has some good points.

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    Council Member 120mm's Avatar
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    Quote Originally Posted by slapout9 View Post
    Don't agree, the person on death row has had due process...a trial and found guilty. The other has not.

    jmm99 no brawls here, just good discussion. 120mm has some good points.
    So, because 12 people who lack the abilty to escape jury duty, subjectively decide he's had "due process", this somehow makes this law objective? That's much superior than some (often ancient) tribal honor code....

    I'm just sayin'.....

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    Default Darn, just when I thought ....

    the 600 lb. gorilla would start tossing around the young chimps, you tell me this

    120mm
    I'm buying the drinks afterwords, and we promise not to break any chairs or tables

    slap
    jmm99 no brawls here, just good discussion


    What I've been doing (thus the lurking and listening mode) is slogging through MAJ Krepinevich's 300 page appellant's brief on Vietnam, with asides to Stanton, Palmer and Garland.

    Since I won't get to watch a bar brawl here, I suppose I must contribute something, even though Law and Society isn't one of my fields.

    Here's a start at the top:

    120mm
    An honor code is just that, a code, a highly subjective set of rules of conduct that different cultures define differently. An honor code is not the same thing as the rule of law as codified in instruments like the Geneva Conventions. For instance, a Marine wouldn't be tried in court for leaving behind a squad member, even though doing so would break a deeply held honor code among Marines (and other service branches, obviously).
    Seems "highly subjective" is a term that has to be tied down. To me, a "subjective" approach is what the individual sees as an appropriate course of conduct for that individual. That, BTW, varies with personality types, etc. (another thread on that). If "highly subjective" means "highly individualistic", then each person will have his or her own set of rules determining conduct. That would be the "final solution" to the crime problem since there would be no criminals.

    Seems we might also consider "objective" vs. "subjective". I'll try an example of an "objective" standard. We have the "reasonable man" standard (in PC, I suppose the "reasonable person" standard). Now, that happens to be a flexible standard (hence, for those who like rigidity, it is not a standard at all) - What is a "reasonable man" ? And, if you happen to take Torts 101, you will spend more than a few weeks trying to get a handle on that - if ever.

    Yet, juries every day apply that standard to decide whether the defendant was negligent or not:

    M Civ JI 10.02 Negligence of Adult—Definition

    Negligence is the failure to use ordinary care. Ordinary care means the care a reasonably careful *person would use. Therefore, by “negligence,” I mean the failure to do something that a reasonably careful *person would do, or the doing of something that a reasonably careful *person would not do, under the circumstances that you find existed in this case.

    The law does not say what a reasonably careful *person using ordinary care would or would not do under such circumstances. That is for you to decide.
    Now, is this a "subjective" or "objective" standard ? It definitely is not "individualistic" because, not only is the defendant's personal standard of care irrelevant, each juror's personal standard of care is equally irrelevant - except as it becomes a factor in the jury's group consensus of what a "reasonably careful person" would or would not do.

    So, at least we have gotten to the point where an "objective" standard has to be a group consensus - in a jury trial, 6 or 12 people whose group consensus in a particular case is affected by their life experiences which include input from thousands of people.

    Having got that far, what is that "law" that "does not say" a damned useful thing in MCJI 10.02. Damned if I know. Perhaps, it is a brooding omnipresence in the sky. For my purposes, starting with a brooding omnipresence is not very useful.

    In short, I do Jomini, not CvC (probably a bad metaphor - let's say that checklists like MOOSEMUSS, METT-TC and SMELC are more similar to how I approach "law"). The bottom line for me, is that the "law" in any particular case is what the judge or jury explicitly or implicitly says it is.

    Trying to collect some of this mess together (leaving out "subjective" and "objective"), I suggest that:

    ... a law is a code, a set of rules of conduct that different cultures define differently.
    So, to me, the Marine Honor Code is just as much a law as the Geneva Conventions. I also suspect that the Marine Honor Code is enforced with more regularity and probably with more consistency than the GCs (which, if you've been reading me, were something of a mess to begin with and are more so with the increased presence of non-state actors as "Powers" in armed conflicts).

    All laws (no matter how defined) are "enforceable" in some way - otherwise, they are not laws. A question is whether they are "enforced". E.g., a lot of ink has been spilled on the 1994 & 1996 Anti-Torture Act and War Crimes Act. When I last read, there has been one prosecution and conviction under the first and none under the second.

    I have no idea how many Federal laws there are (statutes, regulations, orders, etc.) - maybe a million or so - and seemingly rising along with the national debt. Most we don't hear about because they are not enforced, or do not need to be enforced.

    Finally, I think I can get back to the issue I think 120mm raised - what happens when one law collides with another law. Say, the Marine Honor Code and the UCMJ, as in the Tom Cruise movie, A Few Good Men, where from a trial lawyer's standpoint they got the military judge right and not much else. Anyway, it does present the outcome of collisions between laws, where there is also a collision of various ideologies - as presented by the Hollywood types who wrote the script.

    As I said, Law and Society is not one of my favs - so, I won't be insulted if someone says that the preceding is a load of bullroar. In any event, I'll get back to slogging Krepinevich, etc., tonite.

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    Council Member 120mm's Avatar
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    Quote Originally Posted by jmm99 View Post
    Finally, I think I can get back to the issue I think 120mm raised - what happens when one law collides with another law. Say, the Marine Honor Code and the UCMJ, as in the Tom Cruise movie, A Few Good Men, where from a trial lawyer's standpoint they got the military judge right and not much else. Anyway, it does present the outcome of collisions between laws, where there is also a collision of various ideologies - as presented by the Hollywood types who wrote the script.
    I guess in my highly idealistic world, the honorable person breaks the law and then uncomplainingly accepts punishment, therefore satisfying both "honor" and "the law."

    I think a very important question we need to ask ourselves, is "What impact is our insistence on forcing a foreign concept of "law" on a society where we are trying to fight a counterinsurgency have on our strategic goals?"
    Last edited by 120mm; 11-25-2008 at 08:42 PM.

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    Council Member slapout9's Avatar
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    Quote Originally Posted by 120mm View Post
    So, because 12 people who lack the abilty to escape jury duty, subjectively decide he's had "due process", this somehow makes this law objective? That's much superior than some (often ancient) tribal honor code....

    I'm just sayin'.....
    Let me be a little mo clear bout this. I mean Objective law as in a clear defintion of what the crime is. The crime of Murder is pretty objective. The steps in due process are also pretty clear and objective. The "decision making process" used by various people (jury) to determine guilty or not guilty is usually anything but objective.

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    Default In my non-idealistic world,

    I guess in my highly idealistic world, the honorable person breaks the law and then uncomplainingly accepts punishment, therefore satisfying both "honor" and "the law."
    only if the game warden catches me with the illegal goose (or two).

    And that, after consideration of why we have game limit laws. But, when you have three guys pounding away at an incoming gaggle, you can get more than the 3-person limit. My daddy taught me that leaving game in the field to rot was (and is) a sin.

    Thus, the McCarthy exception to the DNR regulations. Sorry, 120mm & Slap, to admit that I break the law - and don't step up to accept punishment. Course, I didn't give the date and place - so, the confession is quite useless (at least in Michigan). Beyond that I plead the Fifth (after taking a shot).

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    Council Member 120mm's Avatar
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    Quote Originally Posted by jmm99 View Post
    only if the game warden catches me with the illegal goose (or two).

    And that, after consideration of why we have game limit laws. But, when you have three guys pounding away at an incoming gaggle, you can get more than the 3-person limit. My daddy taught me that leaving game in the field to rot was (and is) a sin.

    Thus, the McCarthy exception to the DNR regulations. Sorry, 120mm & Slap, to admit that I break the law - and don't step up to accept punishment. Course, I didn't give the date and place - so, the confession is quite useless (at least in Michigan). Beyond that I plead the Fifth (after taking a shot).
    Do you know that in German hunting, (which is much, much more regulated and expensive than the American brand) they hold an Honor Court, for exactly these purposes? Sometimes, the individual loses their license for life, which is a big deal. Other times, when it is a clear mistake, they turn it into a good-humored "roast" of the individual making a mistake.

    I once participated in an Honor Court for an elderly gentleman who shot a Roe jumping in the snow, thinking it was a Hare. As Roe deer are approximately the same size, and an unantlered one looks close to a Hare, when it's trying to move in deep snow they move the same.

    The individual in question sat before the board, and they "punished" him by making him drink beer, and receive instructions on the difference in a Hare and a Roe Deer, complete with other hunters wearing costumes and demonstrating the difference in movement.

    The point behind this charming story is to show an instance where an Honor Code is superior to "The Law". The elderly gentleman didn't need to pay a real fine, or to lose his license, honor was served, and everyone had a great time.

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    Council Member reed11b's Avatar
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    meh...what I keep hearing you describe 120 is not the difference between "the law" and "honor codes", but the difference between enforcing the letter of the law and the intent of the law. I feel you may have an overly romanticized view of "honor codes". Honor codes tend to be every bit as inflexible and illogical as "the law". In fact honor codes are were you get Muslim women stoned to death and acid poured on there face, or were in western society you get rationalized violence against other people for perceived "threats to manhood" or where the Japanese fight way past the point of any possibility for victory, much to the detriment of everyone involved. Now the flexibility to recognize the difference between the "intent" of the law and the "letter" of the law, that may have some function.
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    Quote Originally Posted by sapperfitz82 View Post
    This truly is the bike helmet generation.

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    Council Member slapout9's Avatar
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    Quote Originally Posted by 120mm View Post
    I think a very important question we need to ask ourselves, is "What impact is our insistence on forcing a foreign concept of "law" on a society where we are trying to fight a counterinsurgency have on our strategic goals?"
    That is a good question!

    PS-If the HTT member has a good attorney I think he stands a fair chance of either being acquitted or maybe just get probation and an agreement not to become involved in HTT anymore.

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