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"The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited. I entertain, I confess, a very clear opinion that the Solicitor-General was quite right in arguing the case on the assumption that no sales were made in this country." Lord Herschell Just over one hundred years ago the above ratio-decendi was given in what was at the time a case concerned with alleged back taxes owed by Grainger & Son. Grainger & Son henceforth referred to as G&S were British wine merchants who as a side venture passed on the price lists of a French wine producer to their customers. G&S received a commission on any orders placed with said producer and paid tax on this commission. Gough claimed that tax was payable on the whole value of these sales not just the commission element. Monsieur Roederer henceforth Mr R was a wine producer located in France. He decided whether to accept orders the orders gathered by G&S or not. The reason for this being that the wine was shipped out ahead of any payment being received and Mr R wanted to vett his customers credit worthiness. The wine was shipped directly to the customer in the UK from France. Most customers settled their accounts directly with Mr R. A few customers instead made payment to G&S who would pass on to Mr R any amounts in excess of the commission they happened to be owed. In summary the flows of events are: Mr R, located in France, sends price list to G&S in Britain G&S distribute price list Customer places, for want a better word, an order with G&S for wine produced by Mr R G&S forward order to Mr R Mr R dispatches wine to customer Mr R dispatches bill for said customers wine to G&S for onwards transmission G&S forward bill to customer Customer sends payment to Mr R "“ occasionally made to G&S who forward this to Mr R Mr R sends receipt to customer G&S pay tax on commission received G&S maintained that they entered no contracts regarding Mr R's wine. Gough held the converse view that G&S entered contracts themselves and thus sold Mr R's wine. Our starting point must be to define what a contract under English law is. The Jurists Bentham and Austin have laid down that the "two main essentials of a contract are these: first, a signification by the promising party of his intention to do the acts or to observe the forbearances which he promises to do or to observe. Secondly, a signification by the promise that he expects the promising party will fulfil the proffered promise." More precisely to form a contract under English law the following elements are required i a valid offer has been proffered by the first party to another party or parties ii the offer has been accepted unchanged by the second party or parties and this has been communicated to the offerer . iii there is an intention by all parties to create legal relations when they entered into the contract and the parties have the capacity to contract iv the promises made within the contract are for valuable executive consideration and v the terms of the contract are certain. Did Mr R make an offer through the medium of his price list. Looking in Mozley and Whiteley"s Law dictionary an offer is "An expression of readiness to do something e.g. to purchase or sell". Mr R is saying that he is willing to sell wine. Based on this definition initial opinion would say that the price list does constitute an offer. Continuing with this line of thought G&S acted in an agency capacity for Mr R making an offer to the customers they approached and receiving the acceptance of any order. If the customers accepted G&S's offer made via the medium of the price list then Mr R merely shipped directly from France. The bills for said wine were sent to G&S who would then forward them on to the British customer. These points all suggest that the sale was made in the UK by G&S. The listing of Mr R, in the Post Office London Directory, as trading from G&S's establishment further hints at an agency type arrangement. Much of the argument supporting the invitation to treat viewpoint is by drawing analogies with cases involving auctions such as Payne v. Cave 1789 and Harris v. Nickerson 1873 in which both concluded that bidders make an offer which the auctioneer is free to accept or not. The bidder's offer being retractable until accepted by the auctioneer . The pricelist could be seen as statement of the minimum price at which Mr R would bewilling to sell wine drawing analogies with Harvey v Facey 1893. Mr R's supply of wine in any year is finite and demand could outstrip supply leaving an impossible back log of orders all demanding specific performance. Mr R could possibly, though extremely doubtfully, claim the defence of frustration as the things contracted for no longer exist. Add to this Mr R's option to reject any order makes it appear that his price list is an invitation to treat as otherwise it would be an offer that is subject to revocation without notice. Acceptance of an offer has to be communicated. At the time of this case, 1896, the only readily available methods of communication for distant parties were the postal system or telegram. The postal rule would apply to any customers acceptance sent via these mediums and hence any revocation of the offer would be impossible The final item to consider is the peculiar concept of consideration to be found in the English legal system and those derived from it The 1677 Statute of Frauds made consideration vital in any contracts not made under seal. G&S received no consideration for the wine therefore they could not be a party to the contract. [Transfer of title occurred only between Mr R and the customer]. That occasionally the payments for the wine were made to G&S instead of directly to Mr R was held to be equivalent to Mr R, for the sole convenience of his customers, operating a British bank account to receive payments. Graiger v. Gough was one of the major cases in the creation of the principle of invitation to treat. In order to explore this principle more fully the case will be re-examined as it occurred today. Once again the starting point is was the price list an offer or merely a willingness to deal. There are a number of variants on an invitation to treat these are: pre-contractional negotiations , shop displays and finally advertisements. G&S's supply of the price list to potential customers is a form of direct marketing and falls under the last of these three categories. To be classed as a unilateral offer the price list would have to show some intention to be bound by pro-offering a tangible benefit, in excess of sales puff, that could be accepted by performance rather than communication . Is there any similarity to Bowerman v. ABTA 1995 or Carhill v. Carbolic Smokeball Company 1892. If the answer to this is a negative then the next step is to determine where the act of offer & acceptance occurs. In a face to face situation such as a shop the customer offers to buy goods by presenting them at the till and the shop either accepts or rejects this offer to buy. The goods on the shelves are merely invitations to treat in keeping with the findings of Fisher v. Bell and Pharmaceutical Society of GB v. Boots Cash Chemists. The views of this in America and the European Community are slightly different. Although it seems odd that a shop would not want to sell its stock the English legal system is designed to achieve consistency even if it has to distort the persons actual intent. This produces oddities such as Partridge v. Crittenden 1968 where a newspaper advert to sell wild birds was found to be an invitation to treat not an offer to sell so the defendant escaped prosecution under the Protection of Birds Act 1954 . A key point in the original Graniger v. Gough was where was the contract made. Today the location of the act of contracting can be different depending on the mode of acceptance. The postal rule puts acceptance at the place of posting. Where both parties use a telex or nowadays facsimile machine the Court of Appeal decided in the case of Entores Ltd v. Miles Far East Corporation 1955 that the contract was entered into when and where the acceptance was received. Lord Denning confirmed, obiter" that the same principles also apply to acceptances by telephone. Answering machines and voice mail are assumed to at maximum delay receipt of the acceptance till the next working day rather than grant them an agent status capable of entering contracts. Faulty hardware, lack of link & paper or sloppy business practice, such as not checking the fax for days, does not stop or delay the acceptance of an offer. Public holidays and weekends however do delay acceptance till the next working day. E-mail contrary to popular belief is not always an instant form of communication. An e-mail may pass through a number of third parties networks & servers and could quite possibly be considerably delayed. Also the recipient has to actively retrieve their e-mail from their service providers or works mail server. The Uniform Laws on International Sales Act 1967 sets out that the acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror . But is the offer accepted in the country of the readers computer or where the email server is hosted? If a person picked up the contents of their phones answer machine in a country different to that which said machine was in, where was the contract made. Within closed networks or Electronic Data Interchange systems mail delivery is more reliable and it may be possible to tag the e-mails so they generate a receipt message upon reaching their destination and upon being read. The EDI Trading Partner Agreements will also outline when acceptance takes place and which countries laws apply. If Mr R had a website that could receive customer orders would it be an invitation to treat or an electronic contracting agent ? A non-interactive site just listing his wines would most certainly be classed as an advert. This question is under consideration by may of the worlds legal minds. Unfortunately the Argos £2.99 television and recent Kodak £100 digital camera incident never made it to court so there is no precedent. The Kodak site took the customers order and issued an order confirmation which the customer was asked to retain for warranty service. Consumers would believe that having placed their order and given their credit card details and been told that the £100 will be charged to their card along with receiving an acknowledgement ,that their purchase has been made. This "clickwrap contract" is what the law calls a "contract of adhesion" -- a contract you didn"t really bargain over in any way, but which was presented as more of a take-it-or-leave-it offer . Kodak made such a bad bargain that everyone wanted to take it The only case on web based retail sales so far is American where the court stated "such an automated, ministerial act cannot constitute an acceptance" which does little to resolve the issue. As international web based commerce increases, instances similar to Gough v. Granger will become more common. Will the concept of invitation to treat expand outside of legal systems based around Anglo-American common law bringing some consistency to the dynamics of offer & acceptance or will the EU idea of its an offer until the stock runs out be adopted.
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"The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited. I entertain, I confess, a very clear opinion that the Solicitor-General was quite right in...
bad bargain that everyone wanted to take it

The only case on web based retail sales so far is American where the court stated "such an automated, ministerial act cannot constitute an acceptance" which does little to resolve the issue.

As international web based commerce increases, instances similar to Gough v. Granger will become more common. Will the concept of invitation to treat expand outside of legal systems based around Anglo-American common law bringing some consistency to the dynamics of offer & acceptance or will the EU idea of its an offer until the stock runs out be adopted.

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Obligations II [Tort] 2002-3: Assignment 1....Obligations II [Tort] 2002-3: Assignment 1. LLB 2nd Year. Legal Advisors Memorandum To: The Guardian; Editor & Legal Department From: Amandeep Singh Gahunia Date: 13th December, 2002 Subject: The Michael Fawcett Case Copies to: Catherine Bennett The following document concerns the legal aspects and issues, which will arise through Mr Fawcett's claim of defamation against your newspaper and Catherine Bennett. Please do not hesitate to contact us for further legal advice regarding this subject. Mr Fawcett's claim of Defamation. Mr Fawcett claims the publication in question reflected on his personal reputation in a manner which lowered him in the estimation of right-thinking members of society and could have the effect of people avoiding and shunning him, in that the passage tried to identify him as the alleged palace rapist. If this were to be true, the "permanent" form of the publication fulfils the test for the crime of libel, which is actionable per se. It must be warned that there is no necessity that the words actually give rise to what Mr Fawcett actually feels; even if his best friend was not believe a word of what he feels is being implied, he may still be defamed. Yet, this is to be left to "reasonable" reader test, who is neither, unusually suspicious or naive, but a right a "right thinking member of society generally". It is clearly established that importance lies with what words may be reasonably taken to mean, not what the newspaper or writer intended by them. Therefore, this case seems similar to Cassidy v. Daily Mirror Newspapers Ltd, where the majority of the Court of Appeal held that the publication might convey an impression on the "reasonable" reader that the claimant's character was impugned when it was not so. The nature of the words are, not defamatory in their ordinary meaning, but are in the light of circumstances known to Mr Fawcett, to whom the words were published; "the ordinary and natural meaning may"¦include any implications"¦which a reasonable reader guided not by any special but only general knowledge, and not fettered by any strict legal rules of construction would draw from the words". This means a juxtaposition of material about Mr Fawcett with other material, which was present, may make an otherwise innocent statement defamatory. However, the mere fact that an article about the claimant appeared in the newspaper, when this particular story of the palace rapist was being circulated, does not necessarily carry a defamatory assertion. Nevertheless, Mr Fawcett has said in his particulars of claim the meaning he attributes to the words; his name and the media interest was questioned in such a way, in regards to the current royal scandals, that implied the defamatory statement through the use of innuendo. The statement in question, which was published to others, had direct reference to the claimant through name. Consequently, there is no doubt a hypothetical, sensible reader, having knowledge of the special circumstances, would believe Mr Fawcett had been referred to. The test of the reasonable reader means even the writing of a fictitious character, or another person with similar characteristics, could lead the associates of the claimant to believe the article referred to him, hence, defaming him; in light of this, the actual reference to Mr Fawcett is a serious one. There is an actionable wrong of defamation, as the words were communicated to at least one person other than the claimant, through the national circulation and publication of the newspaper. The latter fact denotes the possibility that the claimant might attract larger damages due to the mass commercial nature of the your business. There is publication to the printer, when you handed the literature in question to them, and there can be no reservations that this was an intentional act. It must be forewarned that common law spreads the net of liability very wide on this issue, so not only will Catherine Bennett, the author, be treated as the publisher, but also the editor, printer, proprietor and others who participated in the publication. It must be noted there may be many separate publications, technically every reader, upon which the claimant will sue and is particularly significant if a true innuendo is relied on. In determining whether The Guardian took reasonable care to the publication of a defamatory statement, the court will take into regard the extent of the responsibility in the decision to publish the statement, the nature and circumstances of the publication, and the previous conduct of the author, editor or publisher. Consequently, The Guardian, having received notice on the possible defamatory nature of the article, will be liable for further publications of the same article. To continue in this vein could be extremely costly to The Guardian, in terms of loss of distributors and, resultantly, the possibility of loss of readers. This has been highlighted in previous cases, where, for example, a claimant brought a criminal and civil actions against the Private Eye magazine in respect of one article, along with 37 of its distributors. Similar to this situation, the claimant believed the magazine was carrying out a defamatory campaign against him and his reputation, with the result many distributors settled not to distribute the Private Eye again. Hence, there exists a possible serious allegation in the nature of the information, with obviously limited steps taken in verification, an absence of the claimant's side to the story, the timing of its release in the midst of all these royal scandals and the inquiring tone of the article. Possible Defences to the claim. Through the factual analysis above, it must have been drawn to your notice how Mr Fawcett's claim certainly fills the criteria required for defamation, that of communication to be published, defamatory and referred to the plaintiff; on the other hand, there exists a number of possible defences. The utilisation of Article 10 of the European Convention on Human Rights is one method, and has already been referred to in previous cases which would have fallen into the liability of unintentional defamation, but that would have been incompatible with article 10. Following this, it would have been an impossible burden for the publisher to check up on every name related to the royal scandals; each could possibly sue for the current claim. Also, participators in the publication can escape liability if it is proved they were innocent of the libel contained, nothing in the work disseminated by them led them to suppose it contained libel and it was not by any negligence on their part that they did not know it contained the libel. If the statement has an underlying truth in the way Mr Fawcett assumes, The Guardian can plead justification. This cannot be the only plea that can be taken for, at the risk of it being unsuccessful, the jury is likely to find the conduct of the newspaper wanton and will return the verdict for higher charges. Further, if the matter of public interest is introduced, the creation of a liability for invasion of privacy could occur. To justify the "repetition" of this possible defamatory statement the newspaper must show the content was true, and make clear and explicit the meaning they seek to justify. However, if it is optimistic that the jury will accept the 'broader' meaning of the justification claim, and hence Mr Fawcett was not 'bad' in point 1, then you can try to show he was 'bad' in point 2, for example an indication of his character and conduct in concerns over selling Prince Charles' unwanted gifts, to reduce the damages. So the answer "possibly not" to explain media interest in the claimant could be expressed in a wider meaning to impute a more general wrongdoing, and the words are reasonably capable of bearing this due to their extreme vagueness. In addition, the use of fair comment, an element of free speech, will protect honest expressions of opinion based on true facts made in good faith on matters of public interest. Although this notion of public interest seems limited at the first instance, it has been interpreted widely, so that the defence is available for comments made on public figures, which Mr Fawcett certainly was in his close role with Prince Charles. The statement must be one based on true facts, but it is not necessary that all the facts upon which the comment is based should be assessed in the alleged libel. Consequently, the words could be used to imply certain conduct and commented on that conduct, based on the possible illegitimate dealings in unwanted gifts. Also, in deciding whether the statement is one of fact or comment, the court will confine itself to the subject matter of the publication and will not regard the wider context of the material. Thus, if the article by Catherine Bennett is considered by itself and on its own merits, without considering the surrounding literature concerning separate stories of the palace rapist, then the statement can not be defamatory in the way claimed by Mr Fawcett. You can further be assured that the defence of fair comment will not fail merely because the truth of every allegation of fact is not proved. However, this defence of fair comment may be defeated, by proving that the statement was made with malice and evil motive, according to the facts provided, this seems not so. Absolute Privilege is a defence, which cannot be applied to this claim, due to the nature of what it protects; parliamentary, judicial and official proceedings. Qualified privilege, radically extended over certain media publications, protects statements made without malice or indirect motive, which, again, has not been established from the factual information provided. This defence can be provided to the newspaper if it can be seen to be in the "discharge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion"¦affords a qualified defence"¦" which would mean the article is privileged. Both the author and the editor and all those who participated in the publishment had a common interest, and duty, in distributing news they felt the public would be interested in, namely all to do with the colourful lives of the Royals and associates; the same would have been done by any "right-minded men" in their position and occupation. This is a legitimate interest, which is protected by law through the freedom of expression, article 10 of the ECHR, although both this issue and that of duty is a matter for the judge. Unlike previous cases, the content in the article was "logically relevant" in the purpose intended, an article which reflected a humorous discussion on the Royal scandals. This topic is reflected in not only this national newspaper but many others also, which rules out the idea of a conspiracy campaign against the claimant. This publication to the world at large can rely upon the Human Rights Act 1998, which gives direct effect to the Convention by means of provision requiring public authorities not to act in a way inconsistent with it. Thus, modern conceptions of democracy require that the role of the media in informing the public of matters of controversy be more recognised than in the past. With the application of Renyolds v. Times Newspapers Ltd, the court may be flexible to give appropriate weight to the importance of freedom of expression by the media on all matters of public concern, the significance of which was recognised by its decision. Appropriate steps to take. If certain steps are followed, an apology, settled out of court and incorporated in a statement in open court approved by the judge, may constitute a defence in an indirect manner. This means an admittance of wrongdoing, and a suitable correction, such as compensation, should suffice. However, since defamatory words are often capable of more than one interpretation, it is open to you to make a qualified offer in relation to a specific defamatory meaning. Alternatively, you may want to go to court where either the court may dismiss the claimant's claim "if it appears that it has no realistic prospect of success", or direct you to provide suitable correction through compensation. It must be noted that changes in this area have arisen due to concern about the seemingly endless rise in levels of awards, thus, any possible damages will not be as heavy as previous cases. In the light of this, the greater effects of Human Rights Act 1998, the possible defences outlined above and the possibility of increasing the circulation of your newspaper by being able to write about your involvement in such a high status case, I conclude you should fight the claim, a course of action which will be extremely beneficial on the balance of the analysis.   

Obligations II [Tort] 2002-3: Assignment 1. LLB 2nd Year. Legal Advisors Memorandum To: The Guardian; Editor & Legal Department From: Amandeep Singh Gahunia Date: 13th December, 2002 Subject: The Michael Fawcett Case Copies to: Catherine Bennett The...

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The constitutions of most of our...The constitutions of most of our States assert that all power is inherent in the people; it is their right and duty to be at all times armed. Thomas Jefferson, 1824 Should guns be banned in America? Should guns be banned? This is one of the widest asked questions. There are those who believe that gun's should be banned, as guns are the number one killer. All around the world, small arms stocks were destroyed in the hope to lower the amount of guns in the world. South Africa's destruction of 24 000 small arms today is part of worldwide small arms destructions "“ 6 000 illegal guns were destroyed in Cambodia, 1 700 in Mozambique, and 10 000 weapons were destroyed in Brazil. Through these destructions governments from around the world are showing their support for the regulation of the small arms trade "“ a trade that kills an estimated 500 000 people each year. Handguns and other firearms have a long tradition in American civilization. The right to bear arms is an American right featured in the second Amendment of the Constitution. In the 18th century, when the constitution was written, times were different; there was a need for armed citizens to insure the safety of the society as a whole. Contemporarily the police department preserves the safety of society and the need for armed citizens is out of date. The founding fathers of the Constitution could presumably never imagine the horrendous outcome of their actions. Every year too many lives are claimed as the result of the American government's inability to fully face up to effects of the issue. Compared to other western countries that have considerably stricter gun control laws America is still viewed as "The Wild-Wild West". The growing gun related death toll in the U.S. has to come to a turning point. Stripping away the constitutional right to bear arms might have the effect that only criminals will have access to guns. It is important to understand that in a society where both criminals and law abiding citizens have access to guns the likeliness of an innocent person getting shot, when both parties are waving guns, is probably greater than if only criminals have guns. A ban on firearms might not be appealing as a short-term solution but it is important that people don't limit their thinking to their generation and not think about the safety of their children, grandchildren and the society people are creating today for them to live in. The main obstacle in removing firearms from citizens in the U.S. is the second Amendment of the Constitution. It reads: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." The second Amendment can be interpreted as every citizen right to bear arms. However the key word is "Militia", meaning soldiers or defenders of the State. In the late 18th century, when the Constitution was written, times were very different than those of contemporary America. People were scared of possible invasions from Native Americans, the English, and other nationalities. By "a well regulated Militia"¦" the founding fathers probably meant that citizens could have a muscot standing in the corner just in case anything would happen. Note that the writers of the Constitution added, "A well regulated"¦" in front of the word Militia. That would most likely reveal a controversy in writing this Amendment, some of the founding fathers might have foreseen the possibility of a misinterpretation of this Amendment. In the U.S. there are approximately 200 million privately owned guns, which is statistically close to a gun per person and places more than one gun per home on average O'Donnell 771. In other words, guns are all around. This effects, without a doubt, the whole society structure and the citizens that live within its boundaries. The children that live within a gun infested society are going to suffer the consequences. In fact, kids between the ages 16 and 19 have the highest handgun victimization rate among all age groups. It's not hard to understand why, since there are on average more than one gun per household, kids are likely to find firearm and in some cases even use it. Here are a couple of incidents that occurred not so long ago. All are witness statements taken down by the police and are all in favor of the government to take action: "A shopkeeper who was shot dead in a robbery stepped in front of her killers to save her daughter, said her husband." "Thieves killed Marion Bates, 64, in front of her daughter Xanthe in an attack at their family jewelry store in Arnold, Nottingham, on Tuesday." "A man has died and another has been injured after a drive-by shooting in Hertfordshire." "Police say two men came under fire- most possibly from an automatic weapon- outside the Physical Limit Health and Fitness Club in Brewery road in Hoddesdon Gun Control in the United States of America is a topic that has had some criticism and support by many citizens. The critical people of this topic believe that the guns do not kill people; it is the people that kill people. The supporters of this topic believe that guns lead to violence and a feeling of power over others. They also believe that if guns were eliminated from the public, then violence and death would decrease heavily in this country. These two opposing views leave the federal government open to a decision on whether or not to abolish one of our Constitutional rights, or to keep allowing people the right to own a gun. The majority of crimes committed in the United States were accompanied by a weapon, which was usually a gun. The Johns Hopkins Center for Gun Policy and Research dedicates its service to prevent gun-related deaths and injuries. Studies have proven that in 1997 there were 32,436 gun related deaths which calculated out equals 88 deaths a day. A study by researchers from the University of Chicago, John Lott and David Mustard, showed that violent crime is reduced when citizens have a law that allows them to carry concealed weapons. In 1994 a crime bill was passed that included an assault weapons ban that outlawed the manufacturing and selling of semiautomatic weapons and prohibits the manufacturing of copies. The Johns Hopkins Center for Gun Policy and Research was established in 1995 and applies an approach to informing the public about guns. The Center attempts to educate the public about firearm injuries and new gun policies. The Center tries to prove that the safety of guns can be regulated as we would regulate the safety of other consumer goods. The Center looks into legal and public strategies to reduce the amounts of injuries and deaths due to the use of guns. The Center creates and evaluates policies to restrict the availability of weapons to high risk users. The faculty of the Center evaluates the effect of gun laws such as those banning the Saturday Night Specials, or permitting the carrying of a concealed weapon. The Center also conducts surveys to find out from the public what people think about gun laws and policies There is like all arguments, a reason why guns should not be banned. There are reasons which have to be accounted for such as the quote "Guns don't kill people, people kill people.". For almost as long as guns have been around gun control has been a major issue throughout the world. As we look back on the past we find that gun control, its is said that gun control doesn't really help reduce crime. Another down side of gun control is that if the government takes away the right to own weapons then they will start to think they can take other rights away. With every new anti gun law passed the crime rate in the United States escalates. For example if you look at the state of Texas or any other state where pro gun laws were recently passed, that allow non felon citizens to purchase and carry a handgun, you can see that crime rates have gone down in these states. It appears that if criminals feel threatened, because their victims may have a gun, they are less likely to attack people. This example shows how gun laws that restrict guns are ineffective because when a law that allows guns is passed crime rates don't go up but actually go down when more people have guns. "Gun laws fail because they do not address the issue. The issue is not possession of firearms, but misuse of firearms. We cannot expect criminals to abide by gun laws when they have already shown a disregard for law and order by their criminal activity. The only people ever affected by gun laws are peaceful, law abiding citizens, who never abuse their firearms right. Recent research is finding gun laws do not reduce the amount of violent crime in our society. Gun laws have succeeded only in disarming the law abiding and making the criminals' work environment safer I submit that our concern should be to make the environment for honest citizens, and this, gun laws have failed to do." Thomas Jefferson predicted these same results when he said, "Laws that forbid the Carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides, for an unarmed man may be attacked with greater confidence than an armed one." If someone is a criminal they either don't really care about breaking the law or they don't plan on getting caught. It is absurd to pass laws that restrict law abiding citizens from owning weapons because it isn't the citizens, that are obeying the laws,that should be punished for the wrong doing of the criminals. A robber is not going to stop and think wow I better not hold up this store, with this gun, just because it is illegal. Robbing a store is illegal in the first place, but the robber is still going to rob the store, so what is the point of making guns illegal. The law shouldn't be on the gun it should be against the person using the gun. The gun itself did nothing wrong. If a robber robs a store the gun is not thinking or moving by itself so it can't be blamed for the crime.   

The constitutions of most of our States assert that all power is inherent in the people; it is their right and duty to be at all times armed. Thomas Jefferson, 1824 Should guns be banned in America? Should guns be banned? This is one of the widest asked questions. There...

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''a diabetic at work without a...''a diabetic at work without a recent insulin injection approaching the lunch break may become tense, erratic, short tempered, but that behaviour does not constitute a criminal act'' Kelly, Holborn and Makin, 1983 sited in; M. Haralambos and M. Holborn 2000 It is regarded amongst sociologists that physiological characteristics do not cause criminal or deviant behaviour. This paper will look at a few of the main functionalist and conflict theories of crime and deviance and conclude with which one, in relation to the title, provides the largest body of evidence. Functionalist theorists argue that crime and deviance is caused by 'structural tensions' where as conflict theorists argue that 'deviance is deliberately chosen, and often political in nature'. Functionalists argue that people commit crimes because there is something wrong with the society the individual is in, and that this is what causes the individual to commit crime. Crime is caused by the structure of society. Conflict theorists argue that the criminal makes a choice to commit a crime ''in response to inequalities of the capitalist system'' Giddens, 2001, Pg 272 Starting then, with Albert Cohen, a subcultural functionalist, who based his studies on the lower classes, Cohen found that lower class children were disadvantaged at school and thus disadvantaged in light of general success in life. Cohen said the lower class were at a disadvantage before they had even started to achieve! Most lower class children, he argued, do not have the same starting position as middle class children. Because of the difference in class Cohen believes the lower class children suffer from 'status frustration' Haralambos and Holborn, 2000, Pg 357. Following this frustration with their position in society Cohen put forward the theory that these lower class children develop a subculture where ''the delinquent subculture takes its norms from the larger culture but turns them upside down'' Haralambos and Holborn, Pg 357. Cohen stated that the success achieved within this subculture related to earning their goals which were perceived by the delinquent as unattainable within society. This he argues is the cause of crime and deviance. Cohen's claim that lower class children are frustrated at being disadvantaged in society, that they have less opportunity to succeed, this indicates quite blatantly that society is not equal. Bernstein stated in Giddens that language differed according to class. Bernstein came up with a theory that the lower classes used a 'restricted code' and middle classes an 'elaborated code' Giddens, Pg 512. Going with the notion that school teachers are middle class, thus use the elaborated code of language so do not communicate as successfully with children originating from lower classes. These youths, as it appears, do not have the access to the same standards of education and so it is easy to assume the individuals motivation for turning to crime. A problem with Cohen's theory is that fundamentally it is based on class position, namely the lower class. He disregards crimes of the upper class. This could indicate that only the lower class has the potential to become deviant in their behaviour. Also Cohen seems to suggest that all disadvantaged people will perform acts of deviant, criminal nature to achieve their goals. It is important to recognise that this is not always the case. Some individuals choose to work hard within society and its laws to gain legitimate success as is seen in Coleg Harlech. Turning now to another functionalists view the writer considers Merton and his 'strain' theory. Merton modified Durkheim's theory of anomie by stressing that where Durkheim said ''that circumstances in which social norms are no longer clear and people are morally adrift'' and instead put across the point that ''"¦term anomie is to describe the strain which occurs when individuals experience conflict between their pursuit of societies goals and the means society provides to achieve them'' O'Donnell, Pg 352. Merton's theory focuses on various acts of deviance which he believes may lead to acts of crime. Merton says there are various goals pushed by society and that society emphasises a set of means to obtain these goals i.e. hard work, education, abiding by the law. Merton goes on to say that not everyone has the means to legitimately obtain these goals and so came up with a theory where he uses five models of adapting to the 'strain' he said people feel due to the inability to successfully adhere to societies goals, and the means whereby they obtain these. The five models Merton put forward are as follows; conformity, where the individual continues to accept the goals and the means to obtain these goals even though failure is almost inevitable. Innovation, according to Merton is the response when the individual accepts the goals set by society but rejects the means to obtain these goals set by society, he then goes on to say the individual finds a replacement to societies 'means', this being an illegal act. The third in Merton's theory is ritualism, this is where the means and goals of society are adhered to but the individual has lost sight of the goals and has no interest in the outcome of his/her work. It is the opposite of innovation. Retualism, according to Merton is the next step from ritualism, the individual disregards both the means and goals set by society. The individual is seen to 'drop out of the rat race', observed by those with alcohol and drug problems. The fifth part of Merton's theory is rebellion where the individual rejects both the means and goals set by society, this is recognised as terrorists/radical political parties P. Taylor et al, Pg 471. Both Cohen and Merton's theories are that of a functionalists perspective and believe crime is needed within society, to indicate there is a problem and in turn that problem can be resolved. Turning now to an interactionalists perspective on crime and deviance, the writer will compare the similarities and differences between the functionalists and the conflict theorists explanation for crime and deviance. Considering Stuart Hall, a conflict theorist, who in 1972 studied the increasing problem of mugging, Hall believed that class position was irrelevant in respect of the victim. He found that muggers would target people that appeared to come from a similar background to themselves, rather than the poor stealing from the rich as is the commonly associated stigma. At that time mugging was not recognised as an actual crime due to its ability to fall within two categories, either robbery or assault with the intent to rob. Over a period of four years the British government released a statistic claiming that muggings were on the increase of one hundred and twenty nine percent per year, Hall argued that this figure could not be completely relied upon. After comparing various statistics Hall discovered the real annual increase of muggings was only fourteen percent. From these findings Hall suggested that the source of moral panic was not the underlying economic problem Haralambos and Holborn, Pg 388. This opinion is in complete contrast to that of both Cohen and Merton who both identify class as a major factor in crime, and both based their theories on the lower classes. Hall also put the thought across that the Media's presence had the ability to make crime appear much worse than it really is/was. Hall described this exaggeration as 'moral panic' Giddens, Pg 212. It is also important to recognise that neither Cohen nor Merton discussed the medias influence upon crime. It is stated in Giddens that ''"¦moral panic about muggings was encouraged by both the state and the media as a way of deflecting attention away from growing unemployment, declining wages and other deep structured flaws within society'' By stating this Hall is concluding that the individuals committing the crimes are individuals forced into crime due to the nature of the economic situation, although Hall is talking about the wider population this could be loosely associated with Cohen and Merton's link with class position. As Hall takes a Marxist view on crime some sociologists argue that it is almost inevitable he comes to the conclusion that the economic situation and to a greater extent the influence of capitalism is the cause for crime and deviance. However Hall's study is based upon statistics and like all statistics these may or may not be accurate, as statistics have the tendency to be bias. It is also important to recognise that crime statistics are collected from crimes that have been reported, thus the figures shown do not represent the whole spectrum of crime, a lot of crimes are clearly not represented by these figures. Hall's study, like that of Cohen and Merton's, focuses on class. But unlike others sociologists i.e. Cohen and Merton, it acknowledges that criminals can/do target individuals in similar social situations as themselves. Cohen and Merton's studies gave the impression that the lower classes select the upper classes and intentionally harm them. This study clearly states that anyone is liable to become a victim of crime and acknowledges the influence of the media on crime. Living in a world where the media has such a large influence upon people it is easy to see how many crimes are exaggerated on television and in the newspapers, the term 'moral panic' used by Hall is a good description. Concentrating now on a more radical perspective the writer shall consider Taylor et al. Ian Taylor, Paul Walton and Jock Young, new criminologists with a neo-Marxist almost radical perspective, developed a theory whereby they believed criminals, out of free will, choose to break the laws set by society and decline any theories that view human behaviour as being influenced by external factors. Functionalists have quite a different opinion to this and believe almost the exact opposite to Taylor et al. Taylor et al view the individual's reason for turning to crime as ''the meaningful attempt by the actor to construct and develop his own self-perception'' Haralambos and Holborn, Pg 386. This strand of new criminology reject's theories which claim coherence with anomie, physiological perspectives and those which include the forming of a subculture, this is undoubtedly as distant in regards to Merton and Cohen's theories as is possible, without creating a new theory. Taylor et al are in complete contrast to the functionalists opinions and actually see crime and deviance as ''actively struggling to alter capitalism'' Giddens, Pg 386. They see crime as a deliberate act, more often than not, with a political basis against the state. Taylor et al hold rather a liberal view upon the capitalist society and its restrictions and would base much devotion on the freedom of a future Marxist society. They believe that ethnic minorities, homosexuals and drug users should not be persecuted but accepted by society. Taylor et al all have the belief that crimes related with property involves the redistribution of money. An example given in Haralambos and Holborn Pg 386 is that ''if a poor resident of an inner-city area steals from a rich person, the former is helping to change society'' Taylor et al come from a socialist perspective and like many other Marxists would like to see the capitalist society replaced by another type of society, Taylor et al would rather adopt a more 'socialist' society which is not only a substantial difference to the functionalists but also to conventional Marxists who would adopt a more 'communist' society. In conclusion this paper has shown that functionalists and conflict theorists hold opposing views about the nature and cause of crime and deviance. As shown above functionalists see crime and deviance as a product of society whereas conflict theorists view crime and deviance as a path chosen by the criminal. I believe, like functionalists the environment possibly created by those in power, i.e. the patriarchal government determines and influences the opportunities given to an individual. I also feel that the individuals have choices in the way they interpret and act upon the opportunities society provides - much like the conflict theorists. In my opinion, neither of these theories produce an accurate, 'whole' picture of the nature and cause of crime, however each of the theories, with their contrasting statements, contain specific characteristics which help to form the larger picture.   

''a diabetic at work without a recent insulin injection approaching the lunch break may become tense, erratic, short tempered, but that behaviour does not constitute a criminal act'' Kelly, Holborn and Makin, 1983 sited in; M. Haralambos and M. Holborn 2000 It is regarded amongst sociologists that physiological characteristics do...

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Gun violence is one of the...Gun violence is one of the most serious problems in the United States. Each year in the U.S., more than 35,000 people are killed by guns, a death rate much higher than that in any other industrial nations. In 1997, approximately 70 percent of the murders in the United States were committed with guns. However, ironically, the United States also is the country that has the most gun control laws. Gun control laws generally focus on passing legislation"”by local state, or national government"”to restrict legal ownership of certain firearms. Seemingly, gun control laws may decrease criminals' access to guns, but in fact the same laws also have their negative effects. Thus, the controversy over gun control is always heated. But my paper is not about whether guns should be controlled or not. From another angle, looking closely at those gun control laws and their enforcement, we can not only see the criminal problem in America, but also another important social problem in America"”racial discrimination. The racial problem of gun control has raised attention of some American scholars in the U.S. For example, a black man, General Lancy, who is the founder of a little organization known as the National Black Sportsman's Association, often called "the black gun lobby" said when asked his opinion of gun control: "Gun control is really race control. People who embrace gun control are really racists in nature. All gun laws have been enacted to control certain classes of people, mainly black people"¦" Some white men have said almost the same thing. Investigative reporter Robert Sherrill concluded in his book The Saturday Night Special that the object of the Gun Control Act of 1968 was black control rather than gun control. Congress passed the act to "shut off weapons access to blacks, and since they Congress probably associated cheap guns with ghetto blacks and thought cheapness was peculiarly the characteristic of imported military surplus and the mail-order traffic, they decided to cut off these sources while leaving over-the-counter purchases open to the affluent." Gun control in the United States has its history. Prohibitions against the sale of cheap handguns originated in the post-Civil War South. In the 1870s and 1880s, small pistols costing as little as 50 or 60 cents were obtainable, and since they could be afforded by blacks and poor whites, these guns posed a significant threat to those who were wealthy or powerful. They were afraid that blacks and poor whites possessing guns would break their established social structure. So consequently, in 1870, Tennessee banned "selling all but 'the Army and Navy model' handgun". Of course this type of gun was the most expensive one, which was beyond the means of most blacks and laboring people. In 1881, Arkansas enacted an almost identical ban on the sale of cheap revolvers. In 1902, South Carolina banned the sale of handguns to all but "sheriffs and their special deputies". In 1893 and 1907, respectively, Alabama and Texas passed extremely heavy taxes on the sale of such weapons to put handguns out of the reach of the blacks and poor whites. The same thing happened in the North. Attempts to regulate the possession of guns began in the northern states during the early 20th century. These regulations were almost the same with their counterparts in South in essence although they had different focuses. In 1911, New York enacted its Sullivan Law requiring a police permit for legal possession of a handgun rather than trying to keep handguns out of means of blacks and the poor whites. This law made it possible for the police to screen applicants for permits to possess handguns. Such a requirement may seem reasonable, it can and has been abused. Those who are not in favor with the influential or the police are easily suspected and denied permits. The act was designed to "strike hardest at the foreign-born element" particularly Italians, Catholics and Jews. Those who were considered racially inferior found it almost impossible to obtain gun permits. Over the years, as the police seldom granted handgun permits to any person but the wealthy and influential, application of the Sullivan Law has become increasingly elitist . Then why those gun control proponents would always deny that those controls are either racist or elitist in effects? Of course the intent of those control apply to everybody and aim at reducing violence for everybody, but the controls are in fact racist or elitist in effect. We can easily notice that the anger towards weapon is originated from the anger towards criminals. Most people, when they are hearing of an especially heinous crime, or when they are victimized, feel angry and hostile towards the offender of the crime. The uncomfortable feeling can be easily transferred from the offender to an inanimate object "“ the weapon. Although the illegal possession of a handgun or of any gun is a crime, it doesn't produce a victim and is difficult to be reported to the police, therefore handgun permit requirements or handgun prohibitions aren't easily enforced. And when laws are difficult to enforce, "enforcement becomes progressively more haphazard until at last the laws are used only against those who are unpopular with the police." Of course minorities aren't likely to be popular with the police. These minorities, because of police indifference or perhaps even hostility, may be the most inclined to look to guns for protection. On the one hand, they can't acquire guns legally and on the other hand, it will put them in danger if possessed illegally. So while the intent of such laws may not be racist, their effect certainly is. Today, the dispute over gun-control, like those of days gone by, breaks out among different social classes. Most of the dedicated proponents of strict gun controls are urban, upper-middle-class people, many of whom are to some degree influential. On the other hand, the most dedicated opponents of gun control are often rural, working- or middle-class people, few of whom can publicize their views, but many of whom know a lot about the safe and lawful uses of guns. To these Americans, guns mean freedom and security. The gun controls dispute, therefore, has become a conflict that affluent Americans attempting to impose their discrimination on working-class people who are comfortable with guns. Above all, we have enough evidences to conclude that gun control in America, not concerning whether it should be or should not be, is a kind of racial discrimination. Now we can admit how right General Laney said: "All gun laws have been enacted to control certain classes of people"¦"   

Gun violence is one of the most serious problems in the United States. Each year in the U.S., more than 35,000 people are killed by guns, a death rate much higher than that in any other industrial nations. In 1997, approximately 70 percent of the murders in the United States...

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