A complicated case

One of my friends presented me with a complicated case in which there are many opposing opinions involved. Here is the case:

http://law.psu.edu/_file/TheCaseOfTheSpelunceanExplorers.pdf

To be short, it goes:

IN THE SUPREME COURT OF NEWGARTH, 4300

The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General

Instances of the County of Stowfield. They bring a petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice.

TRUEPENNY, C. J.

The four defendants are members of the Speluncean Society, an organization of amateurs interested in the

exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to

return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.

The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed.

The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was

expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave. Since it was known that the explorers had carried with them only scant provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how

long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the

rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours. When communication was re- established the men asked to speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus,

and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which

of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister

or priest would answer their question, and none was found who would do so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.

From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice. Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions. After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the

defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judgeruled that the defendants were guilty of murdering Roger Whetmore.

The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. 

As you can see, the case is quite a complicated one, which surely leads to many opposing ideas and thoughts about the conviction of these explorers. Of course, among those ideas, there are mainly 2 streams of thought: guilty or not guilty. It is obvious that the survivors did kill a man deliberately. However, it is unclear whether such action in this case should be considered as murder or a crime.

Take this statue concerning murder into account: “Whoever shall willfully take the life of another shall be punished by death”. All the arguments about the case, no matter to protect or to accuse the explorers, are mainly to answer 2 questions that arise from the statue:

1/ Should the statue be applied to this case?

2/ If the statue is applied to this case, did the explorers violate the statue?

According to Foster Justice, the statue should not be applied in this case. He argued that official law, positive law, was predicted on the possibility of men’s coexistence in society. Therefore, when a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents and statues has ceased to exist. Foster believed that in this case, those explorers were not in a state of civil society but in a state of nature. However, many critics of this argument insisted that no matter what situation the explorers had been in, they were always under the common law, and therefore, the statue must be applied. Nevertheless, among those who agreed that the statue must be applied, the second question divided them. It is obvious that those explorers WILLFULLY took the life of Whetmore. These men acted not only “willfully” but with great deliberation and after hours of discussing what they should do. Therefore, it matched perfectly with the statue concerning murder. Some may argue that in this case, the explorers were in a condition approaching starvation, and they had no other choice. But if hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Even when the victim was himself originally a party to the agreement to cast lots, such action was not acceptable. What would we have to decide if Whetmore had refused from the beginning to participate in the plan? Would a majority be permitted to overrule him? Or, suppose that no plan were adopted at all and the others simply conspired to bring about Whetmore’s death, justifying their act by saying that he was in the weakest condition. Such action cannot be considered as the similar kind of self-defense. Therefore, the conviction should be affirmed.

It is obvious that according to the law, the explorers were guilty. However, it is not certain whether they should be punished by death. Government is a human affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking. These explorers murdered a man in order to save themselves when there was no other choice. Although they did it willfully and deliberately, they did not do that easily. They did that after hours of discussion. When taking that into account, those men deserved a less heavy punishment. By the way, if it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was deadly wrong for these explorers to carry out an agreement which would save four lives at the cost of one? What if Whetmore had agreed with the plan? Should the explorers still be punished by death? We are human. We deliberately and knowingly incur and pay cost on the assumption that the values obtained for those who survive outweigh the loss.

Those critics are right to think of an ethical action from the perspective of its intention and purpose, not it result. However, I believe they failed to see the action from the perspective that they were in the situation. What would we do, if we are in such situation?

kz

july, 2011

In need of enlightenment

Why is bribing traffic police in normal and not so serious traffic law violations commonly considered as a bad thing?

It is common knowledge that bribery is a form of corruption which can lead to many bad consequences. However, when I compare the benefit and cost of bribing polices, it turns out that bribery in this case does more good than harm to the society. So, what is the benefit of bribery?

Why and when do we have to bribe the traffic polices? The answer: when we get caught violating the traffic laws [speed, crossing, helmet, … anything] and we do not want to pay like what is stated in law. There are many reasons why we do not want to obey the law. Mostly, we want to avoid red-tape and inconvenience when our licenses are collected or our vehicles are detained. When we do not hold our driving license in hand, it is illegally to ride a motor or to drive a car. It is needless to say how inconvenient it is when we are unable to use private transportation, especially in Vietnam. This will lead to lower productivity and higher cost in logistics. In some cases, bribery may result in lower fines in comparison with obeying the law, though I believe it is not the main incentive to bribe.

Bribery does some good to the police, also. It is obvious that bribery helps raise the police’s income which is usually low [if it was not low, they would not commit bribery]. Moreover, bribery helps save time. Let us have a look at the progress of fining a typical law violation. The police sees the traffic offender, follows and catches him. Then, the police will ask for the offender’s paper. If the violation is not so serious, the police will fine, make him sign a few papers and let him go. In case of serious offence or lack of necessary paper such as driving license, the police will get the offenders to the police station. Such action will cost a lot of time. And if there are many offenders at the same time, it will be nearly impossible for the police to behave such.

Some may argue that if bribery is legally allowed, the budget will lose a considerable amount of fining money. It is true. However, it is not important because the main purpose of fining is not to increase government budget but to prevent people from breaking the law. Therefore, it does not matter who GETS the fines. Do drivers feel better if they know their money run into government budget instead of the police’s pockets? Does paying the government make the drivers drive more carefully? I do not think so. Moreover, bribery grants traffic police incentives to be hard-working. The more they work, the more offenders they can catch, the bigger their income is. If more people get caught, less people will dare to break the law. And the whole society benefit from it.

So, I suggest that bribery in this case should be legalized. Most of the fines money should be granted to the police in order to create incentives. Of course, this should only be applied in normal offence. In case the offence involves human life or reaches a certain level, the police will have to pay more attention. If this idea can come into reality, I believe it will make a huge change in the way we commute.

Kz

July, 2011

Kangaroo - Water filter and a trap.

1 month ago, about May 27, there appeared a commercial that attracted widely attention - the commercial of Kangaroo, a water filter brand. Appearing in the break of the final match of Champions League, which always had lots of viewers, the commercial caused shockness by its simplicity and repetition. It contained only 1 line: “Kangaroo - Máy lọc nước hàng đầu Việt Nam” ( Kangaroo - the best water filter in Vietnam), and it repeated for nearly 10 times. Along with the line was a big sound and simple background. Many people watching the match, and therefore watching the commercial expressed their anger toward the commercial because of its annoyance and somewhat to them, stupid simplicity. The reaction lasted for almost a week after the match. It seemed that Kangaroo had made a wrong move. But had it really?

What is the purpose of a commercial? To raise awareness, to build strong relation between consumers and producers, to maintain the producers’ images, to remind consumers of the brand. Note that, it was the first time Kangaroo appeared in public, so its core marketing strategy at the moment was just to get people to know about it. At this point, the commercial performed well. Now, many people know the brand Kangaroo, even ones who did not watch the match or a commercial by Kangaroo. Social media did help to expand the Kangaroo’s effect. From facebook to twitter and forums, people criticized Kangaroo strongly. “Hội những người thích chế truyện Doraemon” even had over 50 posts about this event, which could cause awareness of thousands of people. However, people now think about Kangaroo as a loser, a failure. Some promised to never buy a Kangaroo. The brand seemed to have tough beginning, didn’t it?

Let’s have a look at the market of water filter. Can any of you name a water filter brand existing in the market now? I guess most of us cannot. Some can, but the figure must be small. Make no mistake, water filter is a new new new product in Vietnamese market. It means people do not have many choices when they need a water filter. They can hardly compare because other brands have little promotion and thus, people have no information about them. The only brand they know is Kangaroo. Is it a good brand? People do not know, until they use it. Not only Kangaroo but also everything else in the market, consumers do not judge the quality based on how good or funny or expensive the commercial is. If Coca-Cola stops advertising for a long enough time, Pepsi can benefit from that, but not too much. So, imagine a situation like this. A consumer go to super market to buy a water filter. She stops by a shelf selling water filter. What does she see? Kangaroo and some other brands, perhaps one or two. What do you think she will buy? Will she remember her husband’s promise to never buy a Kangaroo because it had annoyed him when his MU was losing? I guess no. All she thinks at the moment is that ‘wait. I do not know whether Kangaroo is a good brand. But I know one thing for sure. Its producer is rich because they could advertise repeatedly at the golden time. Repeatedly advertising means rich. Rich means strong. Strong means trustworthy. It even said that it was the best water filter in Vietnam. It must be somewhat good. I should buy one. By the way, I have no information about the other brands. okay, let’s go home”. You cannot marry a man just by listening to what others say about him. The same applies when you buy goods. Do you remember Dr.Thanh? When it first appeared in public, its advertising campaign on TV did cause a similar annoyance because of its repetition and theme song. Now, Dr.Thanh has a really big share in nearly saturated beverage market. People can say whatever they like because they do not buy nor pay the money. But you do. You do buy, pay and use. So, ignore all the rumours.  And collect your own information.

The conclusion? The commercial did well in raising public awareness.

Even if you are still yet satisfied with the conclusion, I have something for you. How many people watched the final match of season? How many fans of Mu in Vietnam? Many and many. So, if Kangaroo could advertise repeatedly at that time, it means they are quite rich. And you really think that such a big company cannot hire a marketing expert to make a good enough commercial? I do not think so. You - are - trapped.

I believe, sooner or later, the next step of Kangaroo is a apology for its first commercial, when it totally dominates the market.

kz
July, 2011.