Constitutional Conventions

There are generally two types of constitutions, written and unwritten. The American constitution for example is a written constitution as opposed to the British constitution which is an unwritten constitution. Most constitutions today however are written.

Unwritten constitutions can be described as constitutions that have developed organically over time and as a result these constitutions not only operate on written rules but also on a set of unwritten rules known as conventions which are established through a process of un-broken practices.

Conventions are best described as informal rules that help the mechanics of governance. Sir Ivor Jennings described conventions as the flesh that clothe the dry bones of the law. He further defined conventions as rules for determining the mode in which the discretionary powers of the Crown ought to be exercised and says that “without conventions legislation and case law are quite unintelligible”.

Conventions can also be described as non-legal rules that despite having a binding effect, do not have the force of laws and in case of a conflict between the two i.e. laws and conventions, the former prevails. A salient difference between conventions and laws is that laws are enforceable by the courts whereas conventions aren’t.

In the Crossman Diaries Case 1976, a cabinet minister, Richard Crossman, who served in Harold Wilson’s Labor Government kept detailed diaries of the inner workings of government and following his death in 1974, his estate wished to honor his instructions by publishing his diaries.

The Attorney General tried to enforce the convention of collective cabinet responsibility, to prevent the diaries from being published, but was unsuccessful (the Attorney General could have also invoked the Official Secrets Act 1911 which he chose not to). The Crossman diaries were eventually published in three separate volumes.

An example of a convention that continues to present day is the convention that a sovereign does not refuse to assent to a bill that has passed both houses of parliament (Royal Assent). Though a sovereign can refuse, the last sovereign to refuse her assent was Queen Anne (Scottish Militia Bill 1707); in practice the sovereign does not.

Other examples of constitutional conventions include the practice that ministers resign office when they cease to command the confidence of the House of Commons and when the House of Lords acts as a court of appeal, peers who are not law lords do not take part in proceedings. Cabinet ministers must also publicly support all government decisions even if they privately disagree with them as per the convention of collective cabinet responsibility.

Conventions can be created at any time. They become established when they are repeatedly adhered to or when they are observed over a period of time which implies that constitutional conventions become established with the passage of time and a general willingness to observe them or to be bound by them.

Over the years there have been calls to codify constitutional conventions or to give them the effect or the force of an act of parliament but that would erode the element of flexibility that is attached to conventions.

For example, the convention that a sovereign does not refuse to assent to a bill that has passed both houses of parliament if it were codified or enacted as an act of parliament will prohibit the sovereign from refusing his or her assent to all bills and this may become crucial when there is legislation that is enacted that may be deemed onerous or unfair, for example retrospective legislation (legislation that operates on matters that took place before its enactment).

In Burmah Oil Company Ltd. v. Lord Advocate (1964) four oil companies with registered offices in Glasgow, Scotland, Burmah Oil Company (Burmah Trading), Burmah Oil Company (Burmah Concessions), Burmah Oil Company (Overseas) and Burmah Oil Company (Pipelines) sought compensation as a result of damages incurred during the Second World War, under the Crown Suits Act 1857.

The House of Lords ruled by a majority of 3 – 2 that the damage that was incurred was similar to the compulsory requisitioning of property, which was done for the good of the public and for that reason the proprietor(s) should be compensated from public funds.

Subsequently parliament passed the War Damages Act 1965 which exempted the crown from being liable for destruction of property in times of war and the act was to have retrospective effect thereby preventing the Crown from being liable for acts done in contemplation of war.

The bill could only become an Act of Parliament if it had the assent of the sovereign who by convention is required to give his or her assent but should the sovereign refuse than the bill would not become an Act of Parliament and therefore it would be fair to say that conventions, to some degree, help heads of states protect individual rights, freedoms and liberties.

“Conventions have many advantages over legislation. It enables a distinction to be drawn between what is acceptable in general circumstances and what may be necessary in exceptional circumstances. The legislation can regulate the exceptional circumstances, while convention can deal with the everyday, in a way that can adapt flexibly” – House of Commons & House of Lords, Joint Committee on Constitutional Conventions.

Copyright © 2018 by Dyarne Ward

Mens Rea II – Intent

Mens Rea is divided into various classes. The first type of Mens Rea and the easiest to understand or comprehend is intent. Intention is affirmed when the defendant wants something to happen as a result of his or her actions. Intention itself can be divided into two categories – direct and oblique intent.

Direct intent is relatively straightforward and easy enough to discern or establish. For example the defendant wants to kill a person and in furtherance of his or her thought, he or she goes to a shop and purchases a knife and having bought the knife, he or she then stabs his or her victim with the knife, knowing that his or her actions will result in the death of the victim.

Similarly the defendant goes to a gunsmith to purchase a gun. He or she acquires the gun and the bullets and at a chosen time and at an appointed location points the gun at the victim and pulls the trigger, once again with the knowledge that his or her actions will result in the death of the victim.

Let us look at another example. The defendant invites the victim over for dinner and prepares a meal that is laced with cyanide. He or she allows the victim to consume the meal with the full knowledge that the victim will die as a result of consuming the meal.

In all the three examples given above the intention of the defendant is clear, in that, the act is done to precipitate the death of the victim. In other words the act is done with malice aforethought and the act is done with the defendant’s mental faculties intact or the defendant is fully aware that his or her actions will result in either death or grievous bodily harm to the victim.

Malice afterthought simply means that the act is done with wanton, often utter, disregard for human life or a degree of callousness that completely disregards the consequences of the act.

Malice afterthought however does not in any way imply hate, rage or any form of ill-will towards the victim for example when the act of killing is done for profit.

A simple example would be large sum insurance pay-outs. There might not be any dislike for the victim but in order for the defendant to benefit from the policy the victim has to be dead and therefore the act of killing is committed or perpetrated.

Oblique intent occurs when the defendant claims that the consequences of his or her actions were different from what he or she intended for example when an act is done to scare or to intimidate the victim but it leads to or results in death.

In Hyam v DPP (1974), Mrs. Hyam poured petrol (a flammable liquid) in the letterbox of her lover’s (Mr. Jones) new partner (Mrs. Booth) which she ignited by using a newspaper and a match to scare Mrs. Booth. The consequences of her actions were that Mrs. Booth’s children died as a result of asphyxia.

The house by a majority of three to two held that “No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act” – Lord Diplock.

This area of the law was first recognized or realized in the case of DPP v Smith (1961) – Smith had stolen some goods and loaded it to the back of his car. A policeman ordered him to stop but he drove off instead and the policeman jumped on to the back of the car in order to stop him. The policeman was subsequently throw off from the back of the vehicle, into the path of other oncoming vehicles and died as a result.

The House of Lords unanimously upheld the conviction. In doing what he (Smith) did, he must, as a reasonable man have contemplated that serious harm was likely to occur. Hence he is guilty of murder.

The test in DPP v Smith (1961) is as follows:- If the jury is satisfied that he (Smith) must as a reasonable man have contemplated that grievous bodily harm (GBH) was likely to have resulted to the policeman from his actions and such harm did in actual fact occur, than the accused is guilty of murder. On the other hand if the jury is satisfied that he (Smith) could not have contemplated that the policeman would incur grievous bodily harm (GBH) as a result of his actions then the verdict would be guilty of manslaughter.

This is also sometimes known as foresight of consequence i.e. could the defendant have reasonably contemplated the consequences of his actions?

The test in DPP v Smith (1961) was supplanted by Section 8 of the Criminal Justice Act (1967) – Proof of criminal intent.

A court or jury, in determining whether a person has committed an offence –

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

In Maloney (1985) the appellant and his stepfather had been drinking heavily during a family party. Subsequently, after the other family members had retired for the night, the pair participated in a gun loading contest which the appellant won. The stepfather then challenged the appellant to pull the trigger, which he did. The gun went off and he killed his stepfather. The appellant argued that he loved and adored his stepfather.

Similarly in Hancock and Shankland (1986) two striking miners dropped a concrete block and a concrete post from a motorway bridge which struck a taxi taking a working miner to work, thereby killing the taxi driver. The appellants argued that they merely intended to stop the work from progressing or continuing.

In both cases the trial judges directed the jury in terms of the second meaning of intention (oblique intention), as given in Hyam V DPP (1974), and in both cases the appellants were convicted by the jury for murder.

Copyright © 2018 by Dyarne Ward

Mens Rea I

It is a long established principle of criminal law that no crime can be committed without an evil mind and therefore the mental element or the state of the mind, at the time the crime was committed, becomes crucial when determining if an offender is guilty or otherwise.

This mental element is commonly known as Mens Rea and it is derived from the Latin phrase “actus reus non facit reum nisi mens sit rea” which simply means that the act is not culpable (deserving blame) unless the mind is guilty. There are however certain exceptions for example when a crime occurs as a result of negligence.

Criminal law as we know it came into existence as a result of actions committed as acts of vengeance or it is the cumulative result of acts committed as retaliatory actions for injuries, physical or otherwise, suffered or incurred, because of long standing enmities or a desire to seek revenge or to acquire some form of satisfaction or gratification for loss that has resulted from the actions of another.

The most common motives for homicides to date include revenge, jealousy and cheating spouses/partners. Homicides are more often than not, due to feelings or emotions that are prompted by actions that anger the offender or make him or her feel publicly humiliated and actions that, in the case of the offender, are perceived to be deep-seated injuries that fester over time.

These are obviously factors that can be overcome or addressed with proper treatment, be it medical or psychological, provided that the symptoms are indentified in time.

Therefore if you’re someone who has been aggrieved in some way or other, it is important that you seek some sort of remedial advice or therapy, as soon as possible.

It is crucial that we realize who the initial victim was and address the matter before we allow it to deteriorate or degenerate into a situation where the victim becomes the aggressor especially in cases of revenge or in cases of ex-partners and ex-spouses. Criminal law in itself evolved around this type of situations, so don’t throw you life away because of someone else’s actions.

The earliest criminal law cases assigned guilt to anyone who committed the act by virtue of him or her being the owner of the instrument that caused death, harm or injury. Therefore if a person owned a gun and fired off a shot, and that shot killed someone, than he or she was guilty by virtue of owning the gun, regardless of whether it was done innocently or otherwise.

Likewise if someone owned a bull that trampled on another person and caused death or serious injury than the owner of the bull was guilty regardless of whether that person had trespassed on private property or otherwise. In the same manner, someone who had merely attempted a crime, but had not succeeded, was not liable because there was no crime attributed to him or her.

The only type of killing that was allowed was that which was done in the name of the king or the crown and all other acts of killing whether accidental or otherwise were deemed to be a crime despite the lack of criminal intent including acts of self defense.

There were attempts in certain jurisdictions however to allow the offender to pay-off his or her crime as opposed to being punished, and this was basically done to negate the element of revenge or counter the element of vindictiveness.

If for example there was no intention to kill, than insisting that the offender is punished in a specific way, would simply continue or prologue the cycle of action and retaliation which would be, in the long run counterproductive and detrimental to all parties concerned.

The mental element came into the picture somewhere in the 12th century and it made a somewhat piecemeal entry. Self-defense for example was still a crime but it was pardonable by the sovereign and that indicates that the law had slowly started to place more emphasis on the mental element.

It was only towards the end of the 12th century, when Roman Law swept across Europe like a tidal wave, that the concept of Mens Rea, really began to take shape and it allowed offenders to present their defense and punishment was based on a trial. Trials were often adversarial i.e. both parties would present their case in front of a judge who’d act as a mediator.

“It was for the good of the whole world that one race stood apart from its neighbors, turned away its eyes at an early time from the fascinating pages of the Corpus Juris, and more Roman than the Romanists, made the grand experiment of a new formulary system” – F.W. Maitland, English Legal Historian.

It was, in truth, the advent of Canon Law or Church Law, which insisted that the interpretation of any sin required a mental element as well as a physical element that made the mental element a crucial component in establishing guilt.

Copyright © 2018 by Dyarne Ward

Separation of Powers

The doctrine of separation of powers as propounded and enunciated by its principal exponent Baron Montesquieu places the authoritative power of governance in the hands of three distinct and separate bodies, the legislature, the executive and the judiciary and outlines the functions and duties of each of these three branches of government.

The three branches of government work in tandem with each other and in a perfect democracy, act as a check and a balance on each other. Practically however the legislature or the body of elected representatives, selected or chosen by the people, is the most powerful body in the country.

The legislature is divided into the House of Representatives (the lower house) and the Senate (the upper house) or their equivalents. In the United Kingdom, the lower house is called the House of Commons and the upper house is called the House of Lords.

In some countries representatives who sit in both houses are elected while in other countries, representatives in the lower house are elected while representatives in the upper house are appointed.

Appointment is usually on merit but in certain countries these appointments appear to be carried out to reflect the status quo or to ensure that all parties or different segments of the population are equally represented regardless of political beliefs, values, ideologies and motives.

The main function of the legislature is to legislate i.e. to make laws and to repeal or amend existing laws. New laws are introduced as bills (a draft of a proposed law) and once the bill has passed both houses of parliament and has been signed by the President it becomes an act of parliament or a statute.

In the United Kingdom, as per convention, all bills must receive the assent of the sovereign (royal assent) before they come into force as acts of parliament.

The next branch of government is the executive branch and it comprises of elected ministers and the various other officials that head various departments and their staff.

It is the duty of the executive branch of government to apply or in some cases enforce the law as prescribed by the legislature. The police, the IRS, the military and most of the other departments that we take for granted, come or fall under the executive branch of the government.

The third and final branch of government is the judiciary and it is the task of the judiciary to interpret the law and this normally comes into play when there is a disparity or an ambiguity.

If there are any doubts or there is a need to clarify an act of parliament, it may be submitted to the judiciary for interpretation and this normally happens because the legislature sometimes fails to make its intentions clear.

If there are no acts of parliament in place, then judges decide on the basis of common law, i.e. a series of judicial decisions that have the force and impact of laws. Common law is usually reliant on judicial precedent i.e. previous decisions in cases with similar facts.

English law for example is based on the common law tradition i.e. a system of judge made laws which has continuously developed over the years through the decisions of judges.

It is based on an adversarial system where two parties present or put forward their arguments and the judge acts as a moderator. Judges do not investigate the matter that is brought before them but come to a decision based on the evidence that is presented to them.

One of the facets of common law is that like acts of parliament common law is applicable to the whole country. An act of parliament however is considered or regarded as the highest form of law in the country.

In addition to that, there is another system of laws developed by judges called equity. Equity developed because it was found that in many situations there was no remedy at common law.

Equity is based on equitable maxims or a set of rules used to govern the application of equity and its purpose was to achieve justice and fairness.

If a conflict were to occur between common law and equity, then equity would prevail because equity determines cases according to reason and good conscious.

Coming back to the doctrine of separation of powers, according to its tenets, if the three above mentioned powers of governance were to be placed in one body or in a single authoritative entity it would erode democracy and would pave the way for an authoritarian state or a dictatorship.

By dividing the powers that are vested in any government among three distinct bodies we safeguard the principles of democracy.

However it is important to keep in mind that, should any political party gain a two-third majority in both houses of parliament than it is possible for that party to amend the constitution and bring about changes that might benefit the party and its members.

Copyright © 2018 by Dyarne Ward

Molly Mole Criminologist – The Physical Element

Molly had to admit that her first class had taken off relatively well. There were no unexpected twists or turns and with the exception of five students, whose faces were brimming with eagerness to acquire more knowledge, there was nothing to stop her from conducting a smooth session at the end of which she was certain that her students had acquired, at least, a basic understanding of the mental component in a criminal act.

Her most promising student was a bright and cheery lass; who was a member of the local constabulary, Sally Rabbit. She was hoping to be promoted to the rank of inspector once she had completed her degree.

The others were Otto Otter, who appeared to be somewhat of a career student and who was in the process of becoming an academician of sorts, Gary Gopher, a somewhat excitable lad who was always smiling and nodding his head to everything Molly said, Olly Owl, a serious bespectacled nocturnal bird who was now on its second degree and Wally Weasel a shifty eyed lad who’d just moved to Hicksville from Weasel town.

Wally looked more like a criminal than a budding criminologist but that might prove to be an advantage and he could turn out to be an asset during undercover sting operations and might someday like Sally Rabbit become a valuable member of the Hicksville Metropolitan Police.

Three days later on a Thursday morning, Molly was ready for her second class. She did a quick recap just to make sure that her students had understood what they’d learnt in their previous lesson and she continued with her lectures.

“It is not a crime to think about committing a crime and as long as no action is taken in furtherance of the crime or offence than the law has not been broken” she said.

“A crime is only committed when the offender undertakes some sort of physical act to put his thoughts into motion”. She looked around and her students seemed to have understood what she’d said clearly enough.

She paused before she continued. “Let me give you a simple example of something most of us have contemplated doing at some time or other – sending hate mail”.

She saw Wally’s eyes light up ever so slightly at the mention of hate mail and she was certain that he’d sent some out at some point in time.

“Thinking about writing hate mail itself is not a crime but it becomes a crime if the offender actually writes a letter and sends it out to the victim”. She paused and lifted her head to take a good look around to make sure that what she’d said had registered and she looked up just in time to hear Wally Weasel murmur. “Oh look what’s the worst that could happen by sending someone a bunch of nasty stuff in a letter” he said.

“Well, in most instances, with the exception of causing someone a bit of distress nothing would happen but let me add a little twist to the scenario”.

“What if the contents of the letter were so nasty and the person that it was sent to was of such timid disposition that the moment he or she read the contents of the letter, he or she instantly suffered a panic or anxiety attack and needed to be warded?”

“As a general rule, you take you victim as you find them, and whether the offender is criminally liable or otherwise, he or she is morally liable simply because they had no business sending nasty letters in the first place”.

“Legal liabilities are often an extension of moral liabilities, for example it is morally wrong to steal and the morally wrong act of stealing is codified and becomes theft. You can also look at it in another way, if you don’t breach any moral covenants chances are you haven’t broken the law”.

“The above rule of taking your victim as you find them, by the way, is called the eggshell skull rule or the thin skull rule and it generally means that the offender takes his victim as he or she finds them. For example if a mistimed punch results in a hemorrhage and causes the victim to die than the offender is guilty of causing the death of another”.

She narrowed her eyes and she looked keenly at Wally before she continued because she was certain that he’d thrown a punch or two in is lifetime. “They next time you want to throw a punch think twice before doing it or you could land yourself in serious trouble”.

Copyright © 2018 by Dyarne Ward

Molly Mole Criminologist – Omission and Commission

Almost a week had gone by and in that time Molly had managed to ease into her new role relatively well. She’d managed to make the transition from student to teacher comfortably enough and she was determined to help see her students through. Her third class still revolved around the physical elements in a crime.

She began her class in the customary manner by asking a few questions. “Can anyone tell me what are the two ingredients or components to a crime?” she asked. Otto was the first to put up his hand and Molly pointed to him. “The mental and physical element” he replied.

Molly nodded her head and pointed to Olly, “Can you please elaborate on that Olly?” she asked and the owl promptly replied “yes, thought and action, the thought of committing the crime, which is not necessarily in itself an offence and the act of committing it” he said and Molly nodded her head.

“Now, can anyone tell me if it is possible to commit a crime without an act or without any action or by refraining from acting?” she asked and the class remained silent. Molly smiled; they were all astute enough to guess that it was a trick question. “Well” she said after taking a quick glance around the room, looking at the blank faces that prevailed, “the answer in short, is yes”.

“It happens when there is a duty to care for someone”. “The most common duty of care is the parent-child relationship”. “Parents by virtue of having a child or children are compelled by law to care for their child or children and therefore can be found guilty when that duty of care is not met and some harm befalls the child as a result of the breach of duty of care or the duty to care for the child”.

“It is simply the breach of a duty imposed by law and the defendant is guilty if the breach causes some damage to the child or results in a fatality”.

“In most counties the failure to care for a child can be interpreted as child abuse especially where there is an imminent risk to the child’s health and welfare and it is typically associated to children under the age of 18”.

“The harm that results from the breach of the duty of care must be inflicted by non accidental means including carelessness for example leaving a child home alone or other negligent acts”.

As soon as she’d finished, Wally raised his hand and Molly pointed to him. “Does that mean that the police are under a duty to protect me if I’m in danger?” he asked with a smile and Sally who was a member of Hicksville Metropolitan’s finest couldn’t help but glare at him.

Molly replied with a shake of the head. “The police do not have a duty to protect you”. “Even if you had called them and said to them that there is a stalker prowling around in your backyard and it later turned out that there was indeed a stalker who later attacked you and made away with your valuables, and the 911 conversation was recorded, the police are still not under an obligation to protect you” she said.

“Duty of care can alternatively equate to a reasonable standard that one has to observe while carrying out certain duties and it is more evident when there is a close proximity between the offender and the victim than otherwise” she added.

“I’ll revert once again to the parent-child relationship where a duty is imposed because of familial bonds. We are safe in saying that parents have to take reasonable steps to care for their children and a failure to care for their children is sometimes also known as a crime of omission or a failure to act when there is a duty imposed either by common law or statute to act”.

“There are obviously other extensions to the Duty of Care for example the Duty to Rescue whereby citizens are under a moral obligation to try and help their fellow citizens but a failure to do so will not attract any liability”.

“In a nutshell the physical element in a crime may not only be satisfied by carrying out certain actions but it can also be satisfied by failing to act in a specific manner” she concluded.

Copyright © 2018 by Dyarne Ward

Molly Mole Criminologist – The Mental Element

Molly Mole couldn’t believe her luck. She had just graduated as a criminologist after three long years of diligent studies and within a couple of months after the completion of her degree she’d managed to land herself a job at Hicksville Community College as a part-time lecturer. Peter Badger, the principle, had promised her a full time position in the Sociology Department if she could put the college on equal footing with the rest of the colleges in the county.

Thus far despite having been in operation for almost a hundred years Hicksville Community College had not produced a criminologist of any note. Molly however was ready to change all of that and hoped to push the college up the ranking. It was currently sitting at the bottom of the ladder and Molly had made up her mind to push it up at least a notch or two. She felt that it was the only way she could thank Principle Badger for his faith in her.

Today was her first class and she got on her bicycle, just before 8 in the morning, to make her way to college. She was in no hurry because she’d managed to get an early start. As she pedaled her way through the barrage of bicycles that were in front of her, at a leisurely pace, she began to mentally run through her first lesson. She decided she would start by helping her students dissect a crime.

There are two elements to any crime, thought and action i.e. the mental element and the physical element. She decided to start with the mental element.

There are two tests to establish the mental element the subjective test, which is more often than not used to establish criminal liability and the objective test which is more often than not used to establish civil liability. Molly however had to admit that the lines between the subjective test and the objective test have become blurred in recent times.

The subjective test takes into account the peculiarities of the accused and looks into his or her frame of mind while the objective test takes into account the view of the general public. These tests however are only a guide and there is no hard or fast rule as to establishing criminal or civil liability and each and every case has to be decided on its facts.

The severity that is attached to a crime may differ from county to county and therefore a snatch thief or a burglar may get away with slap on the wrist in fox county where the overall crime rate is extremely high while the same snatch thief or burglar may be imposed with a harsher sentence, probably a jail term in rabbit county, where the crime rate is almost nonexistent. It is safe to somewhat say that the objective test is at times subject to prevailing social and economic factors.

“That ought to explain things” she said to herself and she decided that she’d elaborate more on the mental element when she was dealing with proper criminal cases.

There was a possibility however that she might have a particularly astute student in her class who might decide to throw her a curve ball. What if one of her students decides to bring the rational choice theory into play? The rational choice theory is an economic principle that states that individuals always make prudent and rational decisions i.e. the decisions that give them the greatest benefit or satisfaction. Is the rational choice theory a subjective or an objective test?

The rational choice theory per se is a subjective test because it looks into the level of benefit or satisfaction that is derived from the act and that level of benefit or satisfaction differs from individual to individual. It addition to that it also implies a choice i.e. in any given situation an individual has a choice as to whether to commit an act or otherwise. Likewise there is no law that compels a person to commit a crime. He or she can walk away from it at anytime and in most cases people are forgiving.

There may be other mitigation factors that compels a person to commit a crime for example duress, diminished responsibly, impulse control disorders or cases where the offender is not able to appreciate the nature or the result of his or her actions. These factors normally come into play during sentencing.

Copyright © 2018 by Dyarne Ward

Molly Mole Criminologist – The Mental Element

Molly Mole couldn’t believe her luck. She had just graduated as a criminologist after three long years of diligent studies and within a couple of months after the completion of her degree she’d managed to land herself a job at Hicksville Community College as a part-time lecturer. Peter Badger, the principle, had promised her a full time position in the Sociology Department if she could put the college on equal footing with the rest of the colleges in the county.

Thus far despite having been in operation for almost a hundred years Hicksville Community College had not produced a criminologist of any note. Molly however was ready to change all of that and hoped to push the college up the ranking. It was currently sitting at the bottom of the ladder and Molly had made up her mind to push it up at least a notch or two. She felt that it was the only way she could thank Principle Badger for his faith in her.

Today was her first class and she got on her bicycle, just before 8 in the morning, to make her way to college. She was in no hurry because she’d managed to get an early start. As she pedaled her way through the barrage of bicycles that were in front of her, at a leisurely pace, she began to mentally run through her first lesson. She decided she would start by helping her students dissect a crime.

There are two elements to any crime, thought and action i.e. the mental element and the physical element. She decided to start with the mental element.

There are two tests to establish the mental element the subjective test, which is more often than not used to establish criminal liability and the objective test which is more often than not used to establish civil liability. Molly however had to admit that the lines between the subjective test and the objective test have become blurred in recent times.

The subjective test takes into account the peculiarities of the accused and looks into his or her frame of mind while the objective test takes into account the view of the general public. These tests however are only a guide and there is no hard or fast rule as to establishing criminal or civil liability and each and every case has to be decided on its facts.

The severity that is attached to a crime may differ from county to county and therefore a snatch thief or a burglar may get away with slap on the wrist in fox county where the overall crime rate is extremely high while the same snatch thief or burglar may be imposed with a harsher sentence, probably a jail term in rabbit county, where the crime rate is almost nonexistent. It is safe to somewhat say that the objective test is at times subject to prevailing social and economic factors.

“That ought to explain things” she said to herself and she decided that she’d elaborate more on the mental element when she was dealing with proper criminal cases.

There was a possibility however that she might have a particularly astute student in her class who might decide to throw her a curve ball. What if one of her students decides to bring the rational choice theory into play? The rational choice theory is an economic principle that states that individuals always make prudent and rational decisions i.e. the decisions that give them the greatest benefit or satisfaction. Is the rational choice theory a subjective or an objective test?

The rational choice theory per se is a subjective test because it looks into the level of benefit or satisfaction that is derived from the act and that level of benefit or satisfaction differs from individual to individual. It addition to that it also implies a choice i.e. in any given situation an individual has a choice as to whether to commit an act or otherwise. Likewise there is no law that compels a person to commit a crime. He or she can walk away from it at anytime and in most cases people are forgiving.

There may be other mitigation factors that compels a person to commit a crime for example duress, diminished responsibly, impulse control disorders or cases where the offender is not able to appreciate the nature or the result of his or her actions. These factors normally come into play during sentencing.

Copyright © 2018 by Dyarne Ward

Spirit Trees

The bond between a shaman and his or her spirit tree has been a long-established principle of shamanism and many cultures of antiquity adhere to the principle that the abilities of the shaman are very much dependent on the shaman’s spirit tree, to the extent that the metaphoric tree has taken on a life of its own and has become a central feature or facet of shamanism.

The shaman tree can be divided into two types. The first type or category of shaman trees are trees where spirits or spiritual entities reside. These trees have their origins in the realm of folklore and are often divided into different tiers. The strength of the spirit is dependent on the tier that the spirit occupies. Spirits that reside on higher tiers are stronger than those that occupy lower tiers. It is therefore possible, in this manner, to distinguish between inferior spirits and spirits of a higher capacity.

The second type of shamanic trees are trees that have a spirit i.e. these trees have a soul and it is the soul or the spirit of these trees that help and assist shamans during shamanic rites and rituals. The tree that is most commonly associated to having a spirit of its own is the birch tree and the use of birch trees, milk, white colors and white ribbons are prevalent in Altai shamanism. The color white symbolizes purity and this aspect of Altai Shamanism is also known as the milk faith.

In addition to that there is also a tree that is called the world tree which without doubt has its origins in popular myth and it is more commonly referred to as the eternal poplar. According to Altai shamanic principles, the roads to the lower and higher levels of the world run along the trunk(s) of this tree and the tree unites the various levels of the world.

In ancient Turkic-Mongolian circles, these trees along with the sun, moon and the stars were venerated as deities and the bond between the shaman and the spirit tree is strengthened by repeatedly performing shamanic rituals in honor of these tress.

The worship of trees was also rampant among animistic cultures. It is a common precept among followers of the animistic faith that all things for example trees, mountains, rivers etc. have spirits. Tatar oral narratives handed down for generations give us an example of the spirit of the Alps. He is, according to legend, strong, swift, tall and proud.

It is usual among animistic cultures to characterize and attached tangible attributes to natural objects. In his book Religion in Primitive Cultures, Edward Taylor defines animism as the doctrine of Spiritual Beings.

In addition to birch trees, other trees like oak, cedar and ash were also worshipped in ancient Europe and it was widespread in pre-Christian Europe. This type of worship also extended to plants especially plants with healing properties and it’s not unheard off or uncommon to assign plants especially those with medicinal value some sort of divine status.

Animism, as a religion, gives all things, animate and inanimate, character, and that includes attributing salient or prominent features like gender, strength and height to name a few, to the object(s) of worship and the characteristics that are attributed to the object(s) are a general perception of what the object(s) represent and this representation becomes the soul or the spirit of the object.

The spirit of a tree for example may be described as strong and uncompromising if the tree remains and has remained stolid for years. The spirit of the tree may be described as tainted if the bark is covered with blight and it is beset with insect infestation. Similarly, a withering tree that has lost its leaf cover may be described as a dying tree and the spirit of the tree can be described as being on the verge of being set free to either become an acorn that will grow into a new tree or achieve salvation or liberation.

Likewise, a monolith that has stood the test of time may be ascribed with attributes of being strong and enduring and may even be worshipped in some circles as bestowing providence and good luck.

It is very similar to the ancient Persian belief that all things have at their core a soul. It is practically impossible of course to determine if a tree actually does have a soul or otherwise but according to most sources, the worship of trees can bring about a turn of good fortunate unless of course the spirit of the tree is tainted or polluted.

Copyright © 2018 by Dyarne Ward

Black Elk IV

The fifth sacred rite of the Lakota is Hunkapi or the right to foster or forge new relationships and it solidifies existing bonds and paves the way for new alliances. It is reflective of the personal relationship that one shares with the center of the universe or the tree that symbolizes the center of the universe.

It can also be interpreted as the rite of procreation or a rite that facilitates the expansion of familial bonds which of course is essential to perpetuate the continuity of the people and to preserve the longevity of the nation.

The nation is strong for only as long as its people continue to foster and forge new relationships and persist with repairing any damage that may have resulted with the passage of time or from past indiscretions. It is also a means to address grievances and to set aside any past disputes and in certain cases to start anew.

The rite may also be a means to enhancing the bond one has with the totem pole (the totem pole may at times represent the sacred tree that is synonymous to the center of the universe).

A totem pole in short, is a sacred object that is relative or unique to a clan, a tribe or even a family and it is perceived to be a spirit-being that is sacred to a specific person or a group of people and it is in the interest of those that are connected to the totem pole to keep the spiritual relationship alive. In more contemporary terms the spirit-being that the totem pole represents is akin to a guardian angel.

The fifth rite may also equate to fostering better relations with one’s spirit guide. According to Native American legends and traditions there are many spirits that may act as guides for example animal spirits, elemental spirits and tree spirits. These spirits not only act as guides in the valley of dreams during vision quest but also as guardians and in certain cases healers.

Spirits in Native American culture and tradition are synonymous to deities in some other cultures and these spirits are the harbingers of good tidings and the bearers of good fortune.

These spirits are similar to deities in eastern cultures (many of these deities are peculiar to specific localities) and just as there are numerous deities, there are also numerous spirits, too many in fact to list down or compile.

It is a rite that is reflective and parabolic of cultures that are keen on fostering better relationships with all beings, regardless of whether these beings are spiritual or corporeal, and to some extent it is an admittance that we share this world with many other beings, some that may not be visible to the naked eye.

It would be a good idea to keep an open mind and to acknowledge the fact that spirits may not always equate to the lingering spirits of the dead and may equate or may be synonymous to the spiritual matter that forms the core of all things, both animate and inanimate.

The sixth rite of the Lakota is Isnati Awicalowanpi or the puberty ceremony. The ceremony takes place after a girl’s first menses, and it is held to ensure that the girl will grow up to have all the virtues of a Lakota woman and that she understand the meaning of her new role. It is also conducted to formally announce her eligibility as a potential wife and a mother.

There is an exact same ceremony that is held in the East Indian culture as soon as a young girl reaches puberty. It is viewed as an important event in the life of all young girls and celebrated accordingly.

The seventh rite is Tapa Wankayeyapi or throwing the ball. It is a game which represents the course of a man’s life. A young girl stands at the center and throws a ball upwards and to the four corners as others vie to catch it. The first person to catch the ball is considered to be more fortunate than the rest – the ball is symbolically equated to knowledge.

This rite acknowledges that all persons have a right to knowledge but they must be willing to work hard and compete to obtain it. Among other things, it instills a sense of fair competitiveness especially among young children.

Copyright © 2018 by Dyarne Ward