Sir,
A very interesting article considering it is a simple soldier's perspective.
There are falsities, contradictions, and simplifications of complexities which involve power of state, rights of citizens against the state power, fundamental human rights, limit to state power, accountability of the executive to rule of law and the ultimate independent arbiter of whether the state has used its very limited power against its citizen and who is empowered to judge it and under what laws it will be adjudged and fundamental question of what is crime and what are fundamental limits to sovereign power?
Each of the above far more complex for a soldier ( the NCO and even the Generals) to understand!
To understand this, one has to understand the fundamental limitation of the sovereign power:
________________________________________________________________________________________
____________________________________________________________________________________________
The Second Treatise consists of a short preface and nineteen chapters. In chapter i, Locke defines political power as the right to make laws for the protection and regulation of property. In his view, these laws only work because the people accept them and because they are for the public good. In chapter ii, Locke claims that all men are originally in a state of nature. A man in this original state is bound by the laws of nature, but he is otherwise able to live, act, and dispose of his possessions as he sees fit. More important, human beings, free from the arbitrary laws of other men, have an obligation to protect the interests of each other, since they are all equally children of God. They also have an obligation to punish those who go against God’s will and attempt to harm another by compromising his life, liberty, or possessions.
In chapters iii and iv, Locke outlines the differences between the state of nature and the state of war. The state of nature involves people living together, governed by reason, without need of a common superior. The state of war occurs when people exert unwelcome force on other people, interfering with their own natural rights and freedom, without common authority. The difference between war in society and war in nature depends on when they end. In society, war ends when the act of force, such as fighting, is over. When the last blow has been thrown, both parties can appeal to common authorities for the final resolution of past wrongs. But in nature, war does not end until the aggressive party offers peace and offers to repair the damage done. Locke claims that one of the major reasons people enter into society is to avoid the state of war.
Chapter v deals with the definition and function of property. Whether by natural reason or the word of the Bible, the earth can be considered the property of all the people in the world to use for their collective survival and benefit. But Locke also believes in individual property. For individual property to exist, there must be a way for individuals to take possession of the things around them. Locke explains that the best theory of right to ownership is rooted in the fact that each person owns his or her own body and all the labor that he or she performs with that body. So, when an individual adds his own physical labor, which is his own property, to a foreign object or material, that object and any resulting products become his property as well. Locke defines labor as the determining factor of value, the tool by which humans make their world a more efficient and rewarding place for all. Locke explains that money fulfills the need for a constant measure of worth in a trading system but is still rooted in the property of labor.
The rest of the Treatise is devoted to a more specific critique of government, stressing the rule of the majority as the most practical choice for government. He identifies three elements necessary for a civil society: a common established law, a known and impartial body to give judgment, and the power to support such judgments. He calls for a government with different branches, including a strong legislature, and an active executive who does not outstrip the lawmakers in power. Toward the end of the Treatise, Locke finally arrives at the question of forming a new government. When the state ceases to function for the people, it dissolve or is overthrown and may be replaced. When the government is dissolved, the people are free to reform the legislative to create a new civil state that works in their best interest. Locke insists that this system protects against random unrest and rebellion because it allows the people to change their legislative and laws without resorting to force.
Robert Filmer’s Patriarcha had argued for the divine right of kings, and the refutation of this position, which had the weight of centuries of tradition behind it, was one of Locke’s major tasks. Locke describes government as a human invention organized chiefly to further and protect the right of personal property. Human beings have an obligation in accordance with natural, divine, and moral law to care for each other and support the whole human race. Locke’s explanation for the responsibility of community essentially boils down to the Golden Rule: “Do unto others as you would have done unto you.†Despite various forms and complicated expansions, no philosopher or political thinker has provided a simpler, more obvious standard than Locke.
The first few chapters of the Second Treatise reveal some of Locke’s most basic beliefs about human nature. Certain problems necessarily arise in a state of nature, such as the fact that some people will always make war or come into conflict with each other, steal from each other, act aggressively toward each other, and so on. But Locke firmly believes that all people have the ability to use reason to find the correct moral path. He insists that we are rational enough to know what is, and is not, in our best interest. Belief in this universal ability is essential to his remedy for war—civil government. Locke believes that people voluntarily create societies and governments all over the world because government provides certain things that the state of nature cannot, like protection and stability. For Locke, maintaining personal liberty is the key to a proper government, which should work toward the individual’s and the commonwealth’s best interest at all times.
The Second Treatise expresses even more emphatically that the key to all of Locke’s political theories is property and the right to individual ownership of goods. Locke doesn’t directly discuss the importance of property until chapter ix, but once he does, property quickly becomes the center of his model for government. After all, Locke says, the primary reason that people join together to form societies is that they have property to protect. Those same people become willing to give up some of their natural rights to the governing of a central authority, since those with property need a higher central authority to protect it. We may note, however, that this explanation leaves those without property out in the cold. Although Locke’s ideas were revolutionary for his time, they have sometimes been criticized as lacking equal treatment for landowners and nonlandowners (i.e., the rich and the poor) alike.
Locke supports the right of the people to overthrow rulers who betray them. The executive and the legislature coexist independently to keep each other in check. Further, Locke asserts that if a leader violates the community’s trust, the people can and should replace him immediately. Similarly, if the legislative body does not fulfill the needs of the people, it should be dissolved and replaced with whatever form of government the people think best.
SparkNotes Editors. “SparkNote on John Locke (1634–1704).†SparkNotes LLC. 2005. http://www.sparknotes.com/philosophy/johnlocke/ (accessed October 31, 2011).
____________________________________________________________________________________
The maxim that a "man's house is his castle" is one of the oldest
and most deeply rooted principles in Anglo-American jurisprudence.'
It reflects an egalitarian spirit that embraces all levels of society
down to the "poorest man" living "in his cottage."2 The maxim also
forms part of the fabric of the Fourth Amendment to the
Constitution,3 which protects people, their homes, and their property
against unreasonable searches and seizures by the government.4
Despite the continuing erosion of this protection in other places,5
3 The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
History.—Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the "writs of assistance." But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience,1 there was also a rich English experience to draw on. "Every man's house is his castle" was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603.2 A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself.4
1 Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 199, 205-06 (1971).
2 5 Coke's Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: "The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement."
______________________________________________________________________
All the above are violated and that too with total immunity from law! And who decides an NCO!
Not even a General (including the author of the article Maj Gen Rajendra Prakash) understand the import of law, and an NCO decides.
AFSPA provides total immunity from all laws of the land for this NCO!
How stupid can we get?
Nath
A very interesting article considering it is a simple soldier's perspective.
There are falsities, contradictions, and simplifications of complexities which involve power of state, rights of citizens against the state power, fundamental human rights, limit to state power, accountability of the executive to rule of law and the ultimate independent arbiter of whether the state has used its very limited power against its citizen and who is empowered to judge it and under what laws it will be adjudged and fundamental question of what is crime and what are fundamental limits to sovereign power?
Each of the above far more complex for a soldier ( the NCO and even the Generals) to understand!
To understand this, one has to understand the fundamental limitation of the sovereign power:
________________________________________________________________________________________
An Agent Of The King In Every Home
The legal concept of citizen privacy from government intrusion is unfortunately a very new one in the long strides of human history. The idea that government can be limited, or restricted in its powers by the people, and that certain realms of life can and should be off-limits to the prying eyes of bureaucracy, is rarely applied in any culture of any era. This is because most civilizations have been founded and ruled upon the principles of military dominance. There was no separation between the government and the armies it fashioned; the government WAS the military. That is to say, martial law was a way of life for society, privacy was a foolish dream, and daring to contest the fact usually led to one’s death.
The Magna Carta of 1215, which King John was essentially forced to support, established a foundation for civil liberties which would then be fought over for the next several centuries. Beginning in 1627, and the ‘Petition of Right’ in Britain, common citizens began demanding a separation between military and civilian life, as well as the dismantling of standing armies which at that time were being used by the corrupt oligarchy as a means to subdue the populace. The aristocracy called it “royal prerogativeâ€. The masses called it tyranny. However, as we all know, such breaks in the suffocation of despotism are few and fleeting. Fractures in the Petition of Right were frequent, and the aptitude of government to make war (even when there is no call for war) became the common excuse for the rulership to degrade civilian legal protections and hurtle them back into the dark ages, where property is a novelty that the authorities violate at their leisure.
During the years leading up to the American Revolution, the British attempted to stifle the growing independent nature of the colonies by issuing laws such as the ‘Writs of Assistance’, bypassing rights to privacy and allowing officials to search homes and businesses at will without probable cause, supposedly in the name of “capturing smugglersâ€. Not fully satisfied with this intrusion on the lives of the colonists, King George and his cronies issued the ‘Quartering Acts’, which required all colonists to welcome soldiers sent to subjugate them into their homes and to their dinner tables. According to law, early Americans were not only forced to allow warrant-less searches of their homes, they also had to show hospitality to the goons sent to dirty their doorsteps!
The purpose of these actions by governments is to assert their control over a population. THAT – IS – ALL. Rationalizations are always made; usually in the name of “protecting the public from harmâ€, but the real name of the game is imperialism, and fear. When the establishment violates the line of citizen privacy, and gives its agents the legal free reign to enter your home at will, the message they are trying to send is: “Your property is our property. Your life is our business. The law does not protect you. The law is our weapon.†In other words: Resistance is futile.
The Revolutionary War and the U.S. Constitution should have been the final word on the matter of limited government and the inherent rights of individuals. But, the Founding Fathers only thwarted the elites for a time, and as long as such powerful minorities of men exist, there will always be new methods of tyranny, and new battles to be endured. Some may respond skeptically, claiming that our society today is a far cry from the age of British oppression and soldiers storming our living rooms and our pantries. I would have to disagree of course, after I stopped cringing at their ignorance.____________________________________________________________________________________________
Two Treatises of Government
John Locke (1634–1704)
Summary
The First Treatise is a criticism of Robert Filmer’s Patriarcha, which argues in support of the divine right of kings. According to Locke, Filmer cannot be correct because his theory holds that every man is born a slave to the natural born kings. Locke refuses to accept such a theory because of his belief in reason and in the ability of every man to virtuously govern himself according to God’s law. The Second Treatise is Locke’s proposed solution to the political upheaval in England and in other modern countries. This text laid the foundation for modern forms of democracy and for the Constitution of the United States.The Second Treatise consists of a short preface and nineteen chapters. In chapter i, Locke defines political power as the right to make laws for the protection and regulation of property. In his view, these laws only work because the people accept them and because they are for the public good. In chapter ii, Locke claims that all men are originally in a state of nature. A man in this original state is bound by the laws of nature, but he is otherwise able to live, act, and dispose of his possessions as he sees fit. More important, human beings, free from the arbitrary laws of other men, have an obligation to protect the interests of each other, since they are all equally children of God. They also have an obligation to punish those who go against God’s will and attempt to harm another by compromising his life, liberty, or possessions.
In chapters iii and iv, Locke outlines the differences between the state of nature and the state of war. The state of nature involves people living together, governed by reason, without need of a common superior. The state of war occurs when people exert unwelcome force on other people, interfering with their own natural rights and freedom, without common authority. The difference between war in society and war in nature depends on when they end. In society, war ends when the act of force, such as fighting, is over. When the last blow has been thrown, both parties can appeal to common authorities for the final resolution of past wrongs. But in nature, war does not end until the aggressive party offers peace and offers to repair the damage done. Locke claims that one of the major reasons people enter into society is to avoid the state of war.
Chapter v deals with the definition and function of property. Whether by natural reason or the word of the Bible, the earth can be considered the property of all the people in the world to use for their collective survival and benefit. But Locke also believes in individual property. For individual property to exist, there must be a way for individuals to take possession of the things around them. Locke explains that the best theory of right to ownership is rooted in the fact that each person owns his or her own body and all the labor that he or she performs with that body. So, when an individual adds his own physical labor, which is his own property, to a foreign object or material, that object and any resulting products become his property as well. Locke defines labor as the determining factor of value, the tool by which humans make their world a more efficient and rewarding place for all. Locke explains that money fulfills the need for a constant measure of worth in a trading system but is still rooted in the property of labor.
The rest of the Treatise is devoted to a more specific critique of government, stressing the rule of the majority as the most practical choice for government. He identifies three elements necessary for a civil society: a common established law, a known and impartial body to give judgment, and the power to support such judgments. He calls for a government with different branches, including a strong legislature, and an active executive who does not outstrip the lawmakers in power. Toward the end of the Treatise, Locke finally arrives at the question of forming a new government. When the state ceases to function for the people, it dissolve or is overthrown and may be replaced. When the government is dissolved, the people are free to reform the legislative to create a new civil state that works in their best interest. Locke insists that this system protects against random unrest and rebellion because it allows the people to change their legislative and laws without resorting to force.
Analysis
The ideas expressed in the Treatises arose in the middle of England’s political drama involving Charles II. Locke hoped to provide a convincing critique of England’s current form of government and lay the groundwork for a better option. At the time, Locke’s good friend and ally Lord Ashley, the Earl of Shaftesbury, was working from within the aristocracy to overthrow Charles II. Shaftesbury and many others wanted to prevent him from allowing James II, his Catholic brother, to ascend to the throne. Locke worked on both treatises over several years, finally publishing them when William of Orange invaded and seized the throne in what was called the Glorious Revolution. Locke hoped that his new model of government would support William’s revolution as the necessary solution to a monarchy that had abused its privileges.Robert Filmer’s Patriarcha had argued for the divine right of kings, and the refutation of this position, which had the weight of centuries of tradition behind it, was one of Locke’s major tasks. Locke describes government as a human invention organized chiefly to further and protect the right of personal property. Human beings have an obligation in accordance with natural, divine, and moral law to care for each other and support the whole human race. Locke’s explanation for the responsibility of community essentially boils down to the Golden Rule: “Do unto others as you would have done unto you.†Despite various forms and complicated expansions, no philosopher or political thinker has provided a simpler, more obvious standard than Locke.
The first few chapters of the Second Treatise reveal some of Locke’s most basic beliefs about human nature. Certain problems necessarily arise in a state of nature, such as the fact that some people will always make war or come into conflict with each other, steal from each other, act aggressively toward each other, and so on. But Locke firmly believes that all people have the ability to use reason to find the correct moral path. He insists that we are rational enough to know what is, and is not, in our best interest. Belief in this universal ability is essential to his remedy for war—civil government. Locke believes that people voluntarily create societies and governments all over the world because government provides certain things that the state of nature cannot, like protection and stability. For Locke, maintaining personal liberty is the key to a proper government, which should work toward the individual’s and the commonwealth’s best interest at all times.
The Second Treatise expresses even more emphatically that the key to all of Locke’s political theories is property and the right to individual ownership of goods. Locke doesn’t directly discuss the importance of property until chapter ix, but once he does, property quickly becomes the center of his model for government. After all, Locke says, the primary reason that people join together to form societies is that they have property to protect. Those same people become willing to give up some of their natural rights to the governing of a central authority, since those with property need a higher central authority to protect it. We may note, however, that this explanation leaves those without property out in the cold. Although Locke’s ideas were revolutionary for his time, they have sometimes been criticized as lacking equal treatment for landowners and nonlandowners (i.e., the rich and the poor) alike.
Locke supports the right of the people to overthrow rulers who betray them. The executive and the legislature coexist independently to keep each other in check. Further, Locke asserts that if a leader violates the community’s trust, the people can and should replace him immediately. Similarly, if the legislative body does not fulfill the needs of the people, it should be dissolved and replaced with whatever form of government the people think best.
____________________________________________________________________________________
The maxim that a "man's house is his castle" is one of the oldest
and most deeply rooted principles in Anglo-American jurisprudence.'
It reflects an egalitarian spirit that embraces all levels of society
down to the "poorest man" living "in his cottage."2 The maxim also
forms part of the fabric of the Fourth Amendment to the
Constitution,3 which protects people, their homes, and their property
against unreasonable searches and seizures by the government.4
Despite the continuing erosion of this protection in other places,5
3 The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
History.—Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the "writs of assistance." But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience,1 there was also a rich English experience to draw on. "Every man's house is his castle" was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603.2 A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself.4
1 Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 199, 205-06 (1971).
2 5 Coke's Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: "The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement."
______________________________________________________________________
All the above are violated and that too with total immunity from law! And who decides an NCO!
Not even a General (including the author of the article Maj Gen Rajendra Prakash) understand the import of law, and an NCO decides.
AFSPA provides total immunity from all laws of the land for this NCO!
How stupid can we get?
Nath
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