In creating this asymmetry, individualization distinguishes the KCPO from the crime of knife possession, both procedurally and normatively: see Prevention of Crime Act 1953, art. 1(1); Criminal Justice Act 1988, sections 139(1) and 139A(1). Although these crimes are often monitored in a way that betrays problematic differentiation (see below), they do not legally individualize in the same way. In this respect, these are “ordinary” or “standard” crimes and therefore do not represent the (in)egalitarian bourgeois problem of subjecting certain individuals to norms that are not their compatriots. For more information on the specifics of possession crimes, see Markus Dubber, “The Possession Paradigm: The Special Part and the Police Power Model of Criminal Process” in RA Duff and Stuart Green (eds.), Defining Crimes: Essays on the Special Part of the Criminal Law (OUP 2005). Sometimes the conflict of interest is hidden. It could be a personal gain that influences a person`s position and, in such cases, ad hominem could become relevant when the accused person makes arguments of authority or testimony based on his or her personal experience, rather than proposing formal reasoning in which a conclusion is drawn from presumed statements or premises. For example, in court, if the defense lawyer cross-examines an eyewitness, the fact that the witness has been convicted of lying in the past could suggest that the witness should not be trusted, which would not be a mistake. Ad hominem errors can be separated in different ways, including tu quoque, circumstantial evidence, guilt by association, and ad hominem abuse.
All of them are similar to the general scheme of the ad hominem argument, that is, instead of dealing with the nature of someone`s argument or trying to refute it, the interlocutor attacks the character of the promoter of the argument and concludes that this is reason enough to abandon the original argument. [11] Although our discussion of KCO covers some thematically similar areas, it differs methodologically from other work dealing with preventive regulation. Ramsay, for example, proposes an “immanent critique” of the right to security as an emerging legal phenomenon (Ramsay (n 71) 4, 9), which proceeds heuristically and thus explanatoryly, and turns only to normative criticism insofar as it helps to identify internal inconsistencies and thus “expose the conceptual and normative structure [of security] in the object of interpretation”. In contrast, we provide an external normative critique of (i) ad hominem criminalization, which is conceived as a moral/political injustice, and (ii) a preventive regulation technique (i.e.dem KCPO), the latter of which is mainly used to facilitate the former. Since this critique deviates from a solidly egalitarian external perspective, it contrasts sharply with Ramsay`s mainly explanatory effort. The question was whether the learned judge of the Sessions was right when he exonerated the complainant from the offence under section 302 and convicted him only under section 304. While acknowledging that the blow to the head had been dealt with great force, the learned judge sessions noted that the complainant could not be convicted under article 302 of the CPI because the law fell within exception 4 to article 300 of the Code. Sessions J.
completely ignored at least two of the components of the exception. One ingredient that was ignored was that the author did not derive any undue advantage from it, and so this was a case of argumentum ad hominem. The second ingredient was not taken into account at all by the session judge because the murder should have been committed in a sudden fight. He also said a sudden argument caused a murder. But the dispute reportedly took place in a sudden brawl, according to the exception. Although a fight is a completely different ball game, it involves a competition in which both parties participate, regardless of their performance. These maxims guide courts around the world in applying applicable laws in a fair and equitable manner to enable the courts to decide the issues before them. Maxims generally do not have the authority of the law, but when courts apply maxims when ruling on legal issues, and when the legislature absorbs these maxims into the design of laws, they form the basis for sound judgments and take the form of the law. This article attempts to explain the legal maxim argumentum ad hominem, as it is widely used in courts against opponents.
It is the expression of an argument with emotional appeal instead of a logical appeal. Ad hominem errors are considered uncivilized and do nothing to create a constructive atmosphere conducive to the flourishing of dialogue. [27] An ad hominem attack is an attack on the character of the target, which tends to defend itself against the accusation of hypocrisy. Walton found that this is such a strong argument that it is used in many political debates. As he is associated with negativity and dirty tricks, he has gained a bad reputation for always being deceitful. [28] But these confrontations can be terribly effective, as a society and sometimes juries tend to distrust people when they turn out to be of bad nature. Although directly inadmissible, “ad hominem” arguments are used by both the prosecution and the defense in a court case. Using personal attacks to discredit an adversary/witness is a common trick and skill in a litigation context and a very important form of reasoning for a lawyer or judge to know. In Section 2, we described this ideal of civic equality in relation to the different “types of association” introduced by the horizontal dimension of the rule of law, and in the previous subsection, we also argued that certain types of state misconduct can undermine these associative (status-based) ties. In this subsection, we characterize ad hominem criminalization as a distinct form of such misconduct and draw on the findings of Allan and others to provide a broad definition that reflects its flagrant violation of civil equality.
In our view, ad hominem criminalization exists wherever the law, through the use of individualized control, explicitly or implicitly, distinguishes between the status of (i) certain individuals or groups and (ii) society as a whole in such a way that the treatment of the former is instrumentalized in favor of the latter. These three elements – individualized control, differentiation, and instrumentalization – each raise different moral questions about status egalitarianism. Moreover, when everyone is instantiated under the same legal directive, the equality of citizens is violated to a particularly blatant extent. Instrumentalization inflicts discrete expressional damage to the concept of equality, which increases the existing divisions communicated by the individualization and differentiation of the body politic into “ordinary citizens” and “other dangerous.” Any political community that regulates in this instrumental way is, to use Kantian language, incapable of existing as a “field of goals” in which each individual is recognized as having absolute value, and not only of the relative value conveyed by his instrumental use to achieve a particular objective.90 Since the horizontal dimension of the rule of law implies a commitment to equality for every citizen.90 It does not can be reconciled with the variability implied by such a relative value. Therefore, any purely instrumental treatment will be contrary to the equality of citizens and will violate the egalitarian imperatives of the rule of law as an independent form of association. Ad hominem criminalization, insofar as it allows the individualized control of certain citizens only as a means of promoting the safety of others, violates exactly this egalitarian maxim in this way. Guilt by association, i.e. blaming a fighter for their alleged connection to a discredited person or group, can also sometimes be a kind of ad hominem error when the argument attacks a source because of the similarity between the views of someone making an argument and other proponents of the argument. [19] Maxims are useful tools for legal purposes, and the word maxim comes from the Latin word “maxima,” when Latin was the preferred language for legal purposes.