Research Korner: Criminology

Legalizing Euthanasia: An Argument

The purpose of this paper is to argue about the subject of doctor assisted suicide. It will specifically argue with regards to the issue on the legalization of doctor assisted suicide for a terminally ill patient. This paper will also presents arguments and perspectives to defend the chosen position of the writer.             The legalization of doctor assisted suicide for the terminally ill are subjects of strong debates from all sectors of society in such countries as the United States, Canada and United Kingdom. It has become a hotly contested topic for special advocates groups and organizations that espouses a particular view or standpoint in life. This topic has touched and has been discussed and argued the fields of politics, sociology, medicine, medical ethics and moral creating factionalism and divisiveness inside a society on the legality or illegality of this practice. To better understand this practice and give further explanation to the people about this social and moral issue, it would upright to present both side of the fence, both sides of the argument. To facilitate ease of use and free flowing arguments, doctor assisted suicide in this paper will be equated to euthanasia.             Euthanasia can be defined as mercy killing or killing a person because of unbearable and incurable pain. To further expand, euthanasia can be committed indirectly or directly. Direct euthanasia refers to the act made by a person to finally ease and end his/her pain while indirect euthanasia is accomplished by a doctor who uses drugs, methods and operations that would kill the patient but would ease his/her pain (Wellie, 1992). A doctor who knowingly provides a patient with a drug or a prescription medicine in quantity that would induce death can be termed as  indirect euthanasia. Within the sphere of euthanasia, acts can be further classified as voluntary, involuntary and non-voluntary. Voluntary would mean that euthanasia has been performed because of the instruction and consent of the patient who is able to competently distinguish the results of his actions (Steinbock, 1994). In the non-voluntary procedure, the patient cannot give his/her direct consent with regards to a medical procedure that would end her sufferings. The unconscious state or the incapacity to make decisions for the patients and his/her guardian can be clearly applied to the situation that would involve non-voluntary euthanasia. In layman’s term, this kind of euthanasia can be called “pulling the plug” (Zucker, 1999).             Involuntary euthanasia meanwhile refers to the procedure that is both objected by the patient and his guardian (Prado, 1998). Although the patient or the guardian of the patient refuses to undergo euthanasia, the method is done anyway.             Religious, political, lobby and ethics groups have been debating and arguing about the legality and illegality of euthanasia. To clearly illustrate this point, it would be better to state the arguments and standpoints of these two contesting groups. In the negative side or the issue of legalizing doctor assisted suicide, arguments that concerns ethics, religion and morality are used. To these groups, euthanasia must not be implemented because this act is against the will of God. Although these groups argue that God gave man the power of free will, they stated that suicide and euthanasia are one of the acts that are considered to be wrong in the eyes of the Lord (Palmer, 2000). They further equate that although God gave man a free will, it does not mean that man can do all things and all acts that is desired by human beings and even though man has free will, there are things and actions that  are against the law of God and man. For instance, if man has a free will, it does not translate that he can rob, rape and injure other persons and properties without repercussions. To them, free will given by the Lord has some clearly defined lines and boundaries that must be crossed and one of these is the purposely ending or aiding a person to end his life (Donnelly, 1998).             Euthanasia argued by these groups also degrades and destroys the perception of society and its people towards life and its importance. Euthanasia, they argued would make the human perception on the value of life worthless and useless because each and every person who suffers from pain would be easily eased from his agonies by asking for euthanasia, whether voluntary or non-voluntary (Donnelly, 1998). The society and the people in it would be able to see the value of human life using pain, suffering and agonies as a benchmark thereby modifying their outlook and value with regards to the importance of human life. Euthanasia also serves as a social jurisprudence that would release inhibitions regarding the human life. If today, euthanasia is legalized, what assurance does the society has when men would in turn kill and exterminate persons who are considered degenerates, imbeciles and handicapped? If euthanasia is legalized, what prevents a person from committing a murder and then claiming that that act is an act that would free and ease the suffering of a person? If the society permits laws and public policies that in the short term would give beneficial effects like euthanasia, in the future, it cannot prevent the inclusion of policies and actions that would  harm individuals. If a society goes astray by legalizing euthanasia, it would never be in the right path.              The third argument raised by individuals and organizations that is against the legalization of euthanasia is that suffering and pain experienced by a person has a purpose or value. In a religious point of view, suffering would make the person realize the suffering made by Jesus Christ and this realization would of course translate to greater understanding of godliness and holiness (Palmer, 2000). Suffering and death also reminds us that this life is not permanent and that this life can be claimed at anytime by the Lord and in order to give meaning to this life, we must strive to use our life effectively in helping and caring for other people. Suffering and death reminds us not to concentrate on the worldly things and ways of this Earth but to focus our attention and strength to objects and things that would please God (Prado, 1998). Suffering for other individuals helps us to reflect and gain wisdom and a renewed perspective in life. By removing suffering and pain, these lessons of life cannot be totally understood by all men.             Euthanasia also touches some ethical dilemmas and arguments with regards to the importance of life. Groups and individuals who rally against the legalization of euthanasia says that euthanasia presents a mentality to the people that it is better to be dead than being sick or disabled. This mentality therefore would advocate for the elimination of all persons and individuals who are suffering or have some physical/mental disability as lower kinds of human beings that must be erased with or without their consent (Steinbock, 1994). This mentality degrades their status in society making other people look down at them while treating them with contempt and scorn. Society thinks therefore that disabled individuals and suffering patients are burdens to the community. Another argument related to this point of view is who is going to decide and who is going to undergo the non-voluntary euthanasia if patients are unconscious or incompetent in making decisions. Since all men are creatures that have built in with feelings, outlooks and thoughts, bias and prejudice cannot be excluded in the selection process. Since men are creatures that are exposed to the workings of society, doctors and other medical authorities will be inherently subjected in making decisions (Mcmahan, 2003). The medical profession, in implementing euthanasia, is playing as a God since they have the capacity to levy death or life even if the individual asked for it or not.  If checklists and standards will be used in classifying and determining who is going to undergo euthanasia and who is not, this condition would degrade the value of life into simple enumerations and checklists of present illnesses and symptoms experienced by a patient.             Euthanasia can also be contrary to the best interest of the patient asking for it. An argument against euthanasia with regards to this aspect clearly highlights the inability of a patient to critically make a decision and is a direct contradiction taken up in voluntary euthanasia. Anti-euthanasia groups advocate that critical and good judgment on the part of the patient cannot exist because he/she is in a state that can destabilize his/her decision making process. This inability to competently decide can be attributed to depression, medicinal side effects and psychological stability (Keown, 2002). The thought of ending one’s life through euthanasia is brought about by the perspective that the patient has been a burden to his/her relatives and that death will ease the burden that he/she is bringing to them (Keown, 2002).             To legalize euthanasia, opponents said that this move would entail the neglect on the research and development with regards to finding cures and treatment to illnesses such as AIDS and other prevalent diseases nowadays. In allowing euthanasia, the medical profession and the public in general will be forced to just kill and end the life of a person afflicted with an incurable disease (Mcmahan, 2003). Since euthanasia offers a comfortable way out, research and studies with regards to the specific incurable disease afflicted on a patient will not prosper. Euthanasia will be viewed as a risk free and financially stable option in treating patients who are gravely ill.             There are also arguments that support and defend the practice of euthanasia. Some nations and states government in the United States have legalized this practice but euthanasia is done with strict restrictions and conditions that must be complied upon (Dowbiggin, 2003). These conditions and restrictions regarding euthanasia are present in the governing laws and regulations on euthanasia practice in the Netherlands and in the state of Oregon in the United States. Advocates of euthanasia primarily advocate that euthanasia is beneficial because the patients are undergoing excruciating and painful feeling in his/her ordeal (Hillyard, 2001). This conception stem from the fact that people who have incurable and painful diseases suffer greatly and horribly when dying. They state therefore that in order to help and minimize the pain felt by the patient and the emotional trauma that is also felt by relatives and friends, euthanasia must be implemented. Other patient meanwhile state that they do not want to suffer and to experience a painful and humiliating death so they choose and order their doctors and guardians to facilitate euthanasia when they don’t have the capacity to decide anymore. This was the primary argument that was passed in the Terry Shiavo case.             In this legal and medical battle, a patient named Terry Shiavo has suffered from a brain damage and his husband wanted to remove the feeding tube that is inserted to his wife. This order as stated by the husband was specifically requested by Terry when she was still alive since she does not want to suffer and be a burden to the family. The parents of Terry meanwhile were strongly against the removal of the feeding tube countering that Terry was still alive since she was still responding to visual and auditory stimuli. A legal battle ensued between the husband and the parents of Terry dragging with the religious groups, conservative and liberal sectors of the American society. Different doctors and medical practitioners were summoned by the court but they all had conflicting and confused opinions regarding the case. In the end however, the arguments made by the husband won and the feeding tube was removed.             This argument that states that patients must be killed because they experience pain and suffering is a flimsy and weak standpoint. Since patients who request euthanasia have painful and incurable diseases, emotions and outlooks in life can have a great effect on the decision making process of an individual. Although they are asking for death, what they really want are compassion, care and love from their relatives and friends. There, a decision making process is also clouded by medication, pain and depression. In a study conducted by the state of New York in 1994 in a report entitled “When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context”, it stated that patients with severe pain, disfigurement or disability do not wish to commit suicide and that patients who ask for euthanasia have major  symptoms of major depression (Zucker, 1999). The report further stated that patients who have experiences of pain and suffering felt hopelessness and depression and can wrongly see that death and the process of euthanasia is the only way that would end their ordeal (Zucker, 1999).             Another argument that is being pushed by pro-euthanasia groups is that each and every person has the moral and intrinsic right and autonomy to control and set the course of his/her destiny (Hillyard, 2001). This would mean that if a man or a woman decided to end his/her life, there are no legal and ethical hindrances that would prevent him/her for doing it so. Although this argument is accepted by some groups, they correctly said that euthanasia is not an individual action being undertaken by a patient. In order to commit euthanasia, there must be cooperation on the part of the attending doctor and hospital staff and when other persons and individuals are now involved, suicide and killing one’s self will now be in the realms of public interest and order since in most countries, the assistance and help offered by an individual in a suicide is classified as an offense in many states and countries (Donnelly, 1998).             For the sociologist, the issue on euthanasia can be a great opportunity to understand and to closely examine the mentality, outlook and consciousness of a particular society with regards to the subject of death. This study would not only elicit information regarding euthanasia practices in such societies but it would also answer prevailing questions like what are the factors that greatly hinders or advance the practices of euthanasia practices in an specific society?, does society exert pressure and influence when euthanasia is committed?. The field of sociology and sociologists therefore can clearly and adequately answer these questions by using research methods. Sociologists can provide an unbiased and unprejudiced opinion and examination to these emerging phenomena and hopefully, sociology can provide man and society with a way, a compromise in order to reconcile different opinions that are against and for euthanasia. Sociology can therefore be a bridge that will provide society with answers that would help us comprehend this particular issue.             I would say that euthanasia is a personal standpoint; it is a stand regarding a certain subject which is death. Euthanasia is a personal preference made by an individual but it will have negative and far reaching consequences to society. Although this thought can be relatively harmless when viewed at a glance, it can weaken and create confusion in the society because its effects are wide and encompass subjects such as religion, ethics, health care and psychology. This subject therefore creates tension and advocacy in terms of people and organizations who particularly advocates a certain topic or perspective. For me, I would agree and perfectly convinced on the arguments that support the move of not to legalize euthanasia or physician assisted suicide. Legalizing it would create societal conflict and discord because status quo and established mores, laws and customs with regards to death and the idea of death will completely be changed.

Legalizing Euthanasia: An Argument

The purpose of this paper is to argue about the subject of doctor assisted suicide. It will specifically argue with regards to ...

Investigative Techniques – Use of Technology in Forensic Accounting Investigation

Investigative Techniques – Use of Technology in Forensic Accounting Investigation   Introduction Agreeing to the statement that certain TV series like for example, crime scene investigation or the CSI does elevate the importance of technology to a ‘must have’ status in any forensic investigation. In reality technology plays several roles in assisting the forensic accounting investigation and those roles need to be supervised and managed in order to support the objectives of the investigation. Forensic investigation involves a wide range of careful monitoring, assessments and evaluations when it comes to most real, accurate process of investigation and implies to most risky and delicate crime scenarios calling for forensics to take charge of every possible steps that leads to crime resolutions and further comprehensive research in the areas of forensic studies. Technology brings in computer security as a form of defense against unauthorized and malicious intrusion and computer forensics allows for identification of incidents, gathering of evidence, analysis of evidence and potentially recovery of records as there has been multi-disciplinary and inter-disciplinary nature of computer forensics extends to records management. It is suggested in this paper that computer forensics and records management are compatible disciplines and areas of study (Rogers and Seigfried, 2004; Rogers, 2003). Analysis and Discussion with Literature There are rigorous process and procedure which need to be followed in the identification, collection and analysis of data as evidence as it is easy to contaminate suspicious situation by looking to see what's wrong, by ignoring the principle, taken from forensic science, doing no harm and makes use of the fact that every action and transaction into the computer is recorded, usually to a “log file” which provides some list of transactions with important forensics information such as in time stamp. So, for example, if someone accesses ones record via personal computer, the transaction will be recorded with details of the record they accessed, what they did to the record, when they accessed and from where. Another task performs by computer based forensics does involve several examination and assessment of digital evidence. Computer evidence and digital evidence are like any other form of forensics evidence; in order to be valuable to an investigation the digital evidence must be: authentic, accurate, complete, have evidential integrity, be convincing to juries and conform with common law and legislative rules. Thus, technology related evidence is different to the formation of forensic evidence as the computer data changes moment by moment and computer data is invisible to the human eye. The evidence will be obtained reliably by following accepted legal procedures for seizure, imaging and storing as well as ensuring that evidential integrity is preserved always. Aside, proponent Casey (2004, p. 322), have suggested that when considering sources of technology related evidence it is valuable to categorize computer forensic systems into the following ways: -       open computer systems, for example, the world wide web – the internet -       communication systems like, the presence of telephones, mobile phones and other communication devices -       embedded computer systems for instance, presence of useful chip in a car machinery For the advantages linking to computer based forensics does accounts to ubiquitous nature of computing and information technology and the convenience associated with holding data, information and records electronically has the effect of making business, commerce, industry and society deeply dependent on the availability and accuracy of those systems. But on the pitfall, there denotes that as the dependency increases so does vulnerability in forensic centered systems have failures and can result into unauthorized access or attack another advantage, computer as one great tool for technology collaboration for forensic research can be used in storing and managing of records but, some of the records might become susceptible to unauthorized access, tampering, alteration, destruction and other potential misuse as issues raise potential records management problems in ensuring authenticity, reliability and integrity of records. The principles, techniques and tools of computer forensics can provide support for the records management environment in determining if any unauthorized transactions have taken place, obtaining digital evidence to indicate the nature of the transgression and help in the digital recovery and restoration of the original record when the record has been compromised.   Troell et al. (2003, p. 115) asserted that, “computer forensics is often associated with computer security and whilst there are synergies it is most appropriate to think of computer forensics and computer security being opposite sides of the same coin as computer forensics differs from computer security, the issue of securing computers against malicious attacks”. Computerized forensics does performs its tasks in a relative, effective assumption such as for example, serves as UAE corporate governance devise which have on records management (Barrett, 2005) also the concentration on technology resource preservation that supports UAE government systems, upon adhering to the Digital Preservation Coalition as being launched in the year 2002 as stated by Jones (2004). Computer forensics is much more than turning on computer, making a directory listing and searching through files. Henceforth, in due to forensic investigations, concepts about evidential integrity is of a crucial factor as the principle requires that the material being examined must not be changed in any way and several researches that will contravene into the latter principle would render the evidence gathered in forensic investigation inadmissible in court or in such employment tribunal as applicable. Moreover, in order to mitigate certain pitfalls desirable steps are needed and it is in the following pointers, Turvey (2002, p. 765) -       Applicable for computer forensics analysis, the need to carefully preserve the original file or device because this is all the computer forensic expert has to work with and they have to be sure that they can prove that they have not contaminated or tampered with the evidence with integrity -       To ensure evidential integrity, any computer forensics investigation must begin with the creation of an exact image of the file or device and tools and techniques do facilitate the process; for example, write-blocker is used to ensure that the destination drive does not write back to the original source and every actions undertaken by computer forensic team need to be meticulously documented, therefore, creating records of the process -       To focus on application of computer forensics in the resolution of legal cases associated with criminal activity in computing or in employment tribunal related activities such as disciplinary cases of computer misuse in organizations -       To catch up good range of inappropriate activities digital records may be susceptible to, including unauthorized access, infecting records through distribution of viruses, denial of service attacks to even more sinister activities such as internet based terrorism -       Computer forensics tools and principles must be utilize as one better basis for auditing and monitoring records management, as well as aiding in the recovery of lost or damaged records -       The seizing of investigative opportunities, forensics investigation team will need continuing professional development in computer forensics as imperative that they should be knowledgeable about risks, governance, legal issues, trade imperatives and others so too should they be at least cognisant of principles and implications of computer forensics -       To be proactively working with IT and computer forensics colleagues and by which educators, trainers and records management professional bodies should take strong interest into The courts acceptance of computerized forensics evidence depends on how the overall scene investigated are protected and the deepness of records keeping and management is served at all times without any suspicious alterations and utterances towards any material used and presented as upper hand evidence in court hearings and proceedings. The main role of technology in forensics involves easy access to convenience in finding out records and information to the highest level, gaining access to computer based files that is of importance in assuring the reliability, validity as well as effectiveness of CSI systems and its operations, technology happens to be found at the centre core as it aids in storing and keeping of confidential evidence to the crime scene, a tool that brings in effective channeling of communication, studying, interpreting and diagnosing what crime anatomy it has been on a situational basis, computer based forensics help in testing evidences on a higher continuum allowing in forensic investigative outcomes appropriate and desirable as possible, keeping in a better track of profiles and the needed back up information files for a possible archives of crime cases that are undergoing investigations, court hearings by some of well known forensic pathologists/psychologists as well as certain FBI, CIA and other crime organized groups  for a possible cases. Another essential role of technology is for records management as it implies to the exploration of forensic methods and techniques being associated with computer forensics. For instance, according to Irons (2006, p. 102), “the disciplines of records management and computer forensics are potentially mutually compatible. Computer forensics allows for identification of incidents, gathering of evidence, analysis of evidence and potentially recovery of records” and so forensic team and experts could utilize computer forensics principles to positively enhance records management and have valuable knowledge and expertise to share with the other computer forensics colleagues example, towards metadata expertise, functional requirements for electronic records management, recordkeeping systems design and implementation methodologies, digital preservation and retention management” (Irons 2006, p. 102).   In addition, proponents Wang, Cannady and Rosenbluth (2005, p. 119), believed in the “rapid advance in computer and network technology, computer-based electronic evidence has increasingly played an important role in the courtroom over the last decade”. Furthermore, they have also noted that “computer forensics implies to the growing discipline rooted in forensic science and computer security technology, focuses on acquiring electronic evidence from computer systems to prosecute computer crimes, national security threats, as well as computer abuse, as there loses a certain mystique as a technique used solely by law enforcement and intelligence agents, and has become popular and powerful application employed by corporations as deemed for civil disputes also for employee terminations and some proceedings relating to intellectual property” (Wang, Cannady and Rosenbluth 2005, p. 119). The future of computer based forensics is clear as government, courts, organizations and others are placing ample emphasis on fact finding grounds in support to computer related forensic records upon guarding of some inadequate recordkeeping, ensuring in accuracy of forensic evidence records and the guarantee aspect that these are not being put into compromise as deemed important for the court to recognize. Computer forensics can help ensure that computer forensics provides support, backup and reassurance for forensic experts in performing in ideal role and tasking as well as the quest to ensure the ongoing accessibility and integrity of technology manifested knowledge and information. Smith (1999) has indicated that, technologies played an important role in daily activities of the society as benefits are derived for instance the UAE government can deliver e-services to CSI team also, Haugen and Selin (1999) did claim that computer crime is of perilous move to forensic research as of the present as computer based control is needed for prevention of abuses in investigations as it require forensic specialist for records construction and maintenance in assessing effective domains of the forensics. Conclusion Therefore, presence and usability of technology is imperative, a vital tool to any forensic accounting investigation and recognizing technology roles adheres to the successful epitome of forensic investigation. The technology applied for forensics has the obligation to verify evidence, assessing if evidences of crime is valid and reliable proof of determining crime to understand legal proceedings and be aware of the legal standards in valuable presence of technology advancements. The application of computer forensics in record keeping as well as its assumed management will require that some principles adheres to the preservations of imperative integrity of the record for example records in complete stature yet unaltered. Indeed, computer based forensic evidence engaged in creating tools and techniques are ideally crucial in identifying as well as tracing of any legitimate additions, alterations/annotations to record which user made them from which machine and what the alteration is about and ensuring integrity of record. References Barrett, N. (2005). Computer forensics as a corporate governance tool, IQ Magazine – Records Management Association of Australia, Vol. 21 No.2   Casey, E. (2004). Digital Evidence and Computer Crime; Forensics Science, Computers and the Internet, 2nd ed., Elsevier Academic Press, San Diego, CA   Haugen, S., Selin, J.R. (1999). Identifying and controlling computer crime and employee fraud, Journal: Industrial Management & Data Systems, Vol. 99 No.8, pp.340-4   Jones, M. (2004). Preserving digital resources, available at: www.cilip.org.uk/publications/updatemagazine/archive2004/december2004/jones.htm (accessed December 2005)   Irons, A. (2006). Computer forensics and records management – compatible disciplines. Records Management Journal Volume 16 Number 2 pp. 102-112 Emerald Group Publishing Limited   Rogers, M.K. (2003). Computer forensics: science or fad, Security Wire Digest, Vol. 5 No.65   Rogers, M.K., Seigfried, K. (2004). The future of computer forensics: a needs analysis survey, Computers and Security, Vol. 23 pp.12-16.   Smith, R.G. (1999). Defrauding governments in the twenty-first century, Trends & Issues in Crime and Criminal Justice, No.111     Troell, L., Pan, Y., Stackpole, B. (2003). Forensic course development 65, Conference Proceedings of ACM CITC4 03, October 2003, Lafyette, Indiana, pp.265-9   Turvey, B. (2002). Criminal Profiling: An Introduction to Behavioural Evidence Analysis, 2nd ed., Academic Press, London   Wang, Y. Cannady, J. and Rosenbluth, J. (2005). Computer forensics: Foundations of computer forensics: A technology for the fight against computer crime. Computer Law & Security Report Volume 21, Issue 2, 2005, Pages 119-127

Investigative Techniques – Use of Technology in Forensic Accounting Investigation

Investigative Techniques – Use of Technology in Forensic Accounting Investigation Introduction Agreeing to the statement that c...

MORTGAGE LAW: TRACING

a) “Tracing is … neither a claim nor a remedy.  It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property.  Tracing is also distinct from claiming.  It identifies the traceable proceeds of the claimant’s property.  It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim…The successful completion of a tracing exercise may be preliminary to a personal claim or a proprietary one, to the enforcement of a legal right or an equitable one.”  Discuss.  (Lord Millett in Foskett v McKeown [2000] 3 All ER 97).     According to Smith (1997), tracing pertains to the process that allows the transmission of a claim upon the original asset to a new asset. The core idea of tracing is the necessity of one asset standing in place for another asset for legal purposes. As a result, the claims that should have been made relative to the specified original asset are permitted to be transmitted to a new asset.    The plaintiff exercises tracing by locating the asset to pursue pre-existing rights towards the thing. The plaintiff is allowed to make a claim over the new asset relative to subsequent possessors because the latter has interfered with the original rights of the plaintiff. In attempting to trace an asset, the plaintiff is in effect asserting that a new asset was obtained using the original asset. The plaintiff seeks to establish the relationship of the original asset over which a claim was previously made and the new asset to which the claim is aimed to be transmitted. (Smith, 1997)         The situation is exemplified by a defendant exchanging an asset, upon which a plaintiff has a claim for another asset. The plaintiff is able to assert a claim over the new asset through tracing. Tracing provides the crucial relationship between the plaintiff and the new asset by proving that the new asset was obtained with the original asset. Tracing substantiates the claims of the plaintiff over the new asset. This is because the exchange of assets implies that the defendant acquired the value attached to the new asset commensurate to the value of the old asset. What the plaintiff targets is the establishment of the fact that the value attached to the original asset is the same value of what is now attached to the new asset because the old asset was exchanged for the new asset changing the object representing the value but retaining the value per se. According to Smith (1997) what is being traced is value because it is the constant factor that exists before the exchange of assets and after the substitution of assets. Although, value is represented by a different object through the new asset it is still the same value attached to the old asset. This rationale justifies the claim over the new asset. Thus, tracing involves value and not property.   Prior to tracing, it is imperative that the plaintiff has a thing of value. The plaintiff must hold an asset exclusive to other people. The right is not necessarily proprietary in nature and it can refer to either a legal or an equitable right (Agip (Africa) Ltd v. Jackson, 1991; Lipkin Gorman v. Karpnale Ltd, 1991). This is an important prerequisite because it is the right that fuels the tracing of value.   Tracing was applied in Westdeutsche Landesbank Girozentrale v Islington London Borough Council (1996) where the court held that “when property is obtained by fraud, equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity”. The case allows tracing to support claims of fraud in the acquisition of property. In Commerzbank AG v IMB Morgan plc (2004), the proceedings involved different claimants to the money in a single account with the petitioner bank. Tracing was made to determine which claims are supported by the process of tracing value since there are various claimants with conflicting claims.   Tracing is a distinct concept of claim because it is the process of tracing that justifies a claim. Claim is the assertion of a right as supported by the process of tracing. Thus, the process of claiming is also different from the process of tracing. Claiming is a process involving the determination of the issue on the right that the claimant is able to establish. It is only after the right has been established that the process of tracing becomes useful in enforcing the right.   Tracing is not also a remedy because the process does not constitute a legal or judicial manner through which a right is enforced or the violation of the right is prevented or redressed. Tracing is the process of supporting a claim and not establishing a right because the establishment of a right precedes tracing. Tracing makes way for the enforcement of a right.   b) Robert is a trustee of two separate family trust funds, the Childrens’ fund and the Grandchildrens’ fund. In September 2005, Robert’s personal account at his bank is £5,000 in credit. In October 2005, he withdrew £10,000 from the Childrens’ fund and paid it into his own account. In November 2005, he withdrew £15,000 from the Grandchildrens’ fund and paid it into his own account. In December 2005, he withdrew £25,000 from his own account and invested it in Premium Bonds, having seen the television advertisement. In February 2006, he won £50,000 on the Premium Bonds and paid it into his account. In March, he withdrew £50,000 and invested it in further Premium bonds. Robert has recently had judgment given against him in a libel action and as a result, he has now been adjudicated bankrupt.  New trustees have been appointed to both funds. Advise the trustees of both funds as to their respective positions concerning the recovery of the misappropriated trust funds.                 According to Commerzbank AG v IMB Morgan plc (2004), establishing a claim in order to share in a trust fund requires proof of proprietary right to the trust fund. The claimants have three possible bases for enforcing their rights. First basis is tracing by connecting the transfer of assets from the original source to another source, which in this case is tracing the withdrawal of money from the two trust funds and the subsequent deposit to the personal account of the trustee who is also the defendant. The rationale for doing so is to establish a claim over the new account because equity considers the money in the personal account as charged with repaying the money withdrawn from the trust funds (El Ajou v. Dollar Land Holdings plc (No. 1), 1993; Bristol and West Building Society v. Mothew, 1998; Bankers Trust Co. v. Shapira, 1980) regardless of the mixing of the money from the trust fund and the personal fund of the trustee.                Second basis is tracing to prove mistake in payment (Commerzbank AG v IMB Morgan plc, 2004). In cases where there is an identifiable trust fund, where the trustee could have deposited money in payment of the amount withdrawn after receiving the amount invested in premium bonds together with the money gained from the endeavour, the recipient does not have the right to retain the benefit of the money received especially since the trustee is presumed to have cognizance of the claims of the subjects of the trust funds (Papamichael v. National Westminster Bank plc, 2003). The claimants of the trust funds from which money was withdrawn establish their right to the reimbursement of the misappropriated trust fund by supporting their claims with tracing. The claimants may trace the flow of money from the trust funds to the personal account of the trustee to the purchase of premium bonds using the money and the receipt of the money and gains until the aggregate amount was reinvested again into premium bonds. Tracing is important to show that the value lost by claimants due to the withdrawal of the money is the same value attached to the premium bonds and the gains.               Third basis is tracing to support the payment of money for a particular purpose that was not fulfilled (Commerzbank AG v IMB Morgan plc, 2004) so that the trustee, who holds the money is deemed to do so in trust for the subjects of the trust funds (Barclays Bank Ltd v. Quistclose Investments Ltd,1970; Carreras Rothmans Ltd v. Freeman Matthews Treasure Ltd, 1985). This allows the action of the claimants to trace the transmission of value they rightly hold from the withdrawal of funds until the reinvestment of the money in premium bonds. The claimants need tracing in order to support their claims against the funds, held by the trustee, which is now being applied to the court order in favour of the petitioner in a libel suit to which the trustee is the defendant.                  These bases are congruent to the possible defences of the defendant. In relation to the first basis, the defendant may claim that the money withdrawn from his personal account and invested in premium bonds constitutes his personal funds. The claimants may support their claim of fund misappropriation by showing that the tracing of value shows that the amount withdrawn by the trustee is the same amounts deposited in his personal account. The defendant may also claim that there was a mistake of payment when instead of depositing the money back to the account, the whole amount after the monetization of the bonds were deposited to his personal account. The claimants support their claim for misappropriation of funds by tracing value from the trust fund withdrawals to the investment and reinvestment of the money in bonds without reimbursing the trust funds. On the third basis, the trustee may claim that the withdrawals were made to invest the money in behalf of the subjects of the trust. The claimants may support their claim of misappropriation of funds as supported by tracing value from withdrawal to the purchase of bonds and corresponding investment of the funds. The claimants have the right to claim misappropriation of funds as supported by tracing. Overall, tracing will help the claimants establish their claims for breach of trust and the reimbursement of the misappropriated funds relative to the plaintiff in the libel case and other claimants to the assets of the trustee.

MORTGAGE LAW: TRACING

a) “Tracing is … neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his proper...

Old Crime, New Tools or New Crime, New Tools

Old Crime, New Tools or New Crime, New Tools               Internet crime like virus attacks, hacking, theft and different forms of fraud is a growing problem worldwide. High-technology crime is the unlawful use of computer technologies such as the internet, whether to attack new technology and in order to support so-called old crimes such as fraud, identity theft and embezzlement (BBC News 2004). The rapid development of computer technology has spawned a variety of new criminal behaviors and an explosion in specialized legislation to combat them. While computer crimes include traditional crimes committed with a computers, the term also encompasses offenses against intellectual property and other crimes which do not fall within traditional criminal statutes (Carroll and Schrader 1995). Computer/Cyber crime is considered as the most swiftly expanding               Old Crime, New Tools             A computer may be an instrument used as a means of committing traditional crimes such as theft, fraud, embezzlement, or trespass, although in a more complex manner. Internet Fraud             Internet fraud generally refers to any form of fraud scheme that lakes use of one or more components of the internet to present deceitful solicitations to prospective victims, to conduct fraudulent transactions, or to transmit the proceeds of fraud to financial institutions or to other connected with the scheme United States Department of Justice 2008).             According to the Federal Trade Commission (FTC) in the United States, the most prevalent Internet frauds involve, in ranked order,  are Online auctions, Internet access, Web site design and promotion, Online information and adult entertainment services, Pyramid schemes, Business and work-at-home opportunities, Investment and other ‘get-rich-quick’ schemes, Vacation and travel services, Telephone or pay-per-call solicitations, Health fraud (Loza 2002).   Online Auction Fraud             Online auction fraud is among the most common form of internet fraud today. Let us discuss the scope and the evolution of this crime. Fraudulent practices can occur during two distinct phases of the online auction process. First, the fraud can take place during the actual bidding process. Two types of fraud at this stage are bid shielding and bid shilling. The buyers may send payment to the seller and receive no merchandise at all. The buyers may send payment to the seller and receive inferior or completely different merchandise. Finally, the buyer may win the auction but never send any payment. 1. Bid shilling occurs when an individual schemes with someone else or creates a false identity in order to drive up the bidding prices on behalf of the seller. The effect of this fraudulent practice is to artificially encourage legitimate bidders to continually increase their bid in an effort to win the auction. Many times the individual creating a false identity is the seller then bids on its own merchandise in an effort to increase the overall price received for the goods. 2. Bid shielding takes place when a buyer and a partner artificially increase the bids during the auction. Unlike bid shilling, which hopes to encourage increasingly higher bids, this scheme of bid inflation is intended to discourage other bidders from bidding because the false bid is set at an usually high level. Then, at the last moment before the auction ends, the shielder, who is the high bidder, cancels its bid whereby his/her partner wins the auction with the lower bid. 3. The winning bidder sending payment to the seller and receiving nothing in return is the most common type of fraud occurring after the close of an auction. Some online sellers have put items up for auction, taken the highest bidder’s money, and never delivered the merchandise. In addition, consumers who paid by certified check or money order have little recourse when it comes to getting their money back. 4. Another form of post-auction fraud occurs when the high bidder mails payment to the seller only to have the seller send either different merchandise or merchandise of lower quality to the bidder. While the bidder receives some merchandise, the goods the consumer receives are usually of such poor quality that the purchase is virtually worthless. 5. Another form of fraud that occurs after the close of an auction is when the successful bidder fails to send any payment to the seller. It is not unheard of for high bidder in an auction to walk away from the offer and refuse to complete the transaction. While the direct cost of these frauds is not as apparent as frauds involving payment made for either nothing or inferior goods, the indirect effects are grave. The cost of having to run an entirely new auction from scratch causes delay for the sellers in their attempts to sell their goods. Furthermore, all disreputable actions cast a cloud of distrust over the online auction system as a whole, thereby undermining what little consumer confidence currently exists (Snyder 2000).   New Crime, New Tools              The computer may be the subject of a crime. In these cases, the computer is the physical site of a crime, or is the source of or reason for unique forms of assets lost. The use of viruses and logic bombs fit into this category. These crimes present novel legal problems because of the intangible nature of the electronic information which is the object of the crime (Carroll and Schrader 1995).   Spreading of Viruses and Malware             The first virus to be identified was Brain, which emerged in 1986. By the end of the 1980s, the number of known viruses had increased to just seven, but rose more rapidly the following year, numbering eighty. The number of viruses more than doubled between 1998 and 1999 from 20,500 to 42, 000. By the beginning of 2002, estimated growth of viruses was 1,200 a month. With the development of the internet and increasing number of users online, more computers than ever before are affected by malware than has the potential to damage data or have other destructive effects (Whittaker 2004). Common Malwares <ul style="margin-top: 0in; margin-bottom: 0in" type="circle"> <li class="MsoNormal" style="text-align: justify; line-height: 200%">Adbots – Adbots are used to deliver unwanted advertisements to the computer, usually in the form of pop up windows. </li> <li class="MsoNormal" style="text-align: justify; line-height: 200%">Backdoor – A backdoor is a way into a user’s computer bypassing the normal authentication procedures. Backdoors allow hackers to utilize the user’s computer for any reason in which they can conceive.</li> <li class="MsoNormal" style="text-align: justify; line-height: 200%">DDoS Zombie – One type of virus that creates a backdoor into the system which a hacker can use as a Distributed Denial of Service tool. Basically the computer is used along with thousands of other infected computers to send mass amounts of network traffic to a target machine. </li> <li class="MsoNormal" style="text-align: justify; line-height: 200%">Hijackers – Hijackers take control of various parts of the user’s web browser, including the home page, search pages and search bar. They may also redirect the user to certain sites should the user mistype an address or prevent a user from going to a website. </li> <li class="MsoNormal" style="text-align: justify; line-height: 200%"> Keyloggers – Keyloggers are malware which can capture the keystrokes from the user’s keyboard and save them to afile to be transmitted to a hacker later on. </li> <li class="MsoNormal" style="text-align: justify; line-height: 200%">Spyware – Spyware is a generic term for malicious software which ends up on the user’s computer and is used to gather information about the user and other files on the computer. This information includes the user’s visited sites, or in worse cases, the user’s personal information used for identity theft.</li> <li class="MsoNormal" style="text-align: justify; line-height: 200%">Trojans – Trojans are backdoors in the computer in which access is gained by hackers on the internet to either gather information from the user’s computer or to use the computer as a tool for malicious activity such as internet extortion schemes, sending spam or using the user’s computer to hack into other systems (www.iusb,edu). </li> </ul>   Implications of Malware Attacks             Most organizations in the United Kingdom have been the victim of a malware attack. The business implications of malware attacks are becoming a serious threat for organizations. The highest ranking among organizational complaints on malware attacks is the increased help desk time to repair spyware damage. Another problem is the reduced productivity. Still another important problem caused by malware attacks is disrupted business activities (Continuity Central 2006). Malware has become a money-making tool. Malware before has mostly taken advantage of technical weakness and the creation of malware has been characterized as a hobby of careless but computer savvy teenagers. Now malware has changed. It is now a crime. It is intended to steal information and credentials, it tries to blackmail people and it commits click-fraud. It is also being used to support other criminal activities such as spam and denial of service. Denial of service is widely used to blackmail organizations eager to remain connected to the internet. Malware has also become a tool that relies on social vulnerabilities. It uses deceit to spread (www.malware-jakobsson.info).   References   Are UK Organizations Losing the War on Malware? 2006, Continuity Central,             viewed 09 January, 2008, <http://www.continuitycentral.com/news02906.htm>.   Barreca, D 2003, ‘Unawed by Fraud: New Techniques and Technologies Have             Been Enlisted in the Fight against Online Fraud’, Security Management, September, p. 75+.   Carroll, M and Schrader, R 1995, ‘Computer-Related Crimes’, American Criminal             Law Review, vol. 32, no. 2, pp. 183-211.   Internet and Telemarketing Fraud 2007, United States Department of Justice,             viewed 09 January, 2008,             <http://www.cybersafe.gov/criminal/fraud/internet/>.   Jacobsson, M, Malware: The Next Big Internet Threat, viewed 09 January, 2008,             <http://www.malware-jakobsson.info/>.   Loza, E 2001,  Internet Fraud: Federal Commission Prosecutions of Online             Conduct’, Communications and the Law, vol. 23, no. 2, pp. 55+.   Police Tackle Internet Crime 2004, BBC News, UK, viewed 09 January, 3008             <http://news.bbc.co.uk/2/hi/uk_news/wales/north_east/4035037.stm>.   Snyder, J 2002, ‘Online Auction Fraud: Are the Auction Houses Doing All They             Should or Could to Stop Online Fraud?’, Federal Communications Law    Journal, vol. 52, no. 2, pp. 453+.   Therapeutic Goods Administration 2004, Department of Health and Ageing,             Canberra, viewed 13 October, 2004, <www.tga.gov.au>.   What You Should Know about the Dangers of the Internet, Indiana University             South Bend, viewed 09 January, 2008, <http://www.iusb.edu/~sbit/pdf/dangerous-internet.pdf>.   Whittaker, J 2004, The Cyberspace Handbook, Routledge, London.

Old Crime, New Tools or New Crime, New Tools

Old Crime, New Tools or New Crime, New Tools Internet crime like virus attacks, hacking, theft and different forms of fra...

CRIME AND CRIMINAL STUDY

INTRODUCTION             The world we are living in is full of despair and hopelessness. People all over the globe are suffering from something. Diseases, malnutrition, hungers and famine are experienced by the poorest of the poor today. Riots, killings and murders and other violent crimes are always reported by tabloids and newspapers, in fact, these so called crimes and destructive behaviors have become common and trivial that many people displays apathy to the events that happen all around them.             The media using newspapers, television and the Internet has bombarded us for a long time about killings and crimes that this conditioned our mind to unconsciously forget and to ordinarily treat crimes and law breaking acts in our society as a natural occurrence. The media taught us that crimes are to be fantasized or emulated by the people. Movies and news about the and other criminals have been fed by the media to the society up to the point that we become numb to the true nature and impulse of a criminal mind. The only time we truly and consciously care about crime is that when a crime concerns us. We are attracted and focused on the nature of a crime if it totally concerns our wellbeing, security, loved ones and our property. But if we are not the aggrieved party involved in a crime we just close our eyes and turn our backs from it.             Because of this, certain task must be completed to fully understand and universally explain the nature of crime.   AIMS AND OBJECTIVES             The primary aim of this paper is to seek and to discuss if there is a possibility of a universal explanation of crime. It will attempt to portray if possible the true definition and the real nature of crime not just for a specific country or society but for the whole world. It will attempt to seek out and identify the different and varied aspects of crime and criminals. It will inquire and see the moving force that drives people to commit these so-called “crimes” and if these identifiable driving forces are common to all cultures and civilizations. This paper will not only discuss the nature, definitions and explanations of crime but it will also seek to discuss the varied and diverse theories and hypothesis forwarded by criminologists, therapies and correctional officials.   WHAT IS CRIME?             A crime in the simplest term and definition is an act that violates the political and moral laws of an individual or a social group. A crime can also be the action of violating or breaking the law, according to Western jurisprudence, there must be a simultaneous concurrence of both actus reus (guilty action) and mens rea (guilty mind) for a crime to have been committed. In order of prosecution, some laws require proof of causation relating the defendant’s actions to the criminal event in question ( 2001). In addition, some laws require that attendant circumstances have occurred, in order for a crime to occur. Also, in order for a crime to be prosecuted, corpus delicti (proof of a crime) must be established ( 2001).             It may also be a crime to conspire in order to commit other crime or helping other s commit crimes. In some legal systems the simple association for organizing crime is punished. The attempt to commit a crime may be punishable when the actus reus of the crime is not completed.             Crimes are viewed as offenses against society and therefore are punishable by the state. They can be scholastically distinguished depending on the passive subject of the crime or on the offended interest in crime against the personality of the state, rights of the citizen, public administration, administration of justice, public order, public morality, person and honor and patrimony ( 1995).             Crimes can also be distinguished depending on the related punishment or penalties for violations and infraction against the law. The definition of a crime generally reflects the current attitudes prevalent in a society. For example, the possession of drugs is not always a crime while during the Prohibition Era it was illegal to manufacture, transport and offer alcohol to the public ( 2001).             Crimes can be divided into several and overlapping categories like computer offenses, crimes against persons, crimes against property, crimes against state security, drug offenses, sexual offenses and weapon offenses ( 1995). Crimes can also be grouped by severity like felonies indictable offenses, misdemeanors and summary offenses. A person can also be charged for a crime if he/she aids someone else in the committing of a crime or induces someone to commit a crime.             It must be made clear that this definition of crime is not holistic and all encompassing when totally viewed with no bias or prejudices. If scientist define criminals as one who commits a certain crime punishable by law, this definition does not make any distinction between the one time criminal pushed because of sociological and economical factors to the habitual criminal who commits crime because he/she enjoys it ( 2002). This narrow definition of crime and the criminal does not take into account the differences between the convicted criminal, the fugitive and the individual whose crime is known only to himself. This definition does not also provide a guideline for the classification of someone believed by prosecutors, police and researchers to be guilty but found not guilty by the courts.             The classification of crime and what is considered crime by the society changes over time. Some types of events such as murder, robbery and burglary have been defined as crimes for centuries. These acts are considered as part of the common law definition of crime in early societies while other irrational acts have not been viewed as crimes.  As social values and mores change, society has codified some conduct criminal while criminalizing other conducts ( 2002). The recent movement towards increased criminalization of “drunk driving” is an example of such change.             New technology also results in new types of conducts that are not anticipated by law. Changes in the law may be added to newly define and sanction these types of conducts ( 2002 For example, the introduction of computer and internet crimes and penalties in the criminal codes of Great Britain, United States and Europe are manifestations of this shift.   CRIME AND CRIMINAL STUDY             The study of crime in general across a number of functional disciplines is often known as criminal science. This field heavily draws on statistics, environmental design, forensics, policing, sociology and other sciences to analyze the crimes rather than the offenders and provide ways and means to prevent, detect and solve crime ( 2000).             Other fields in the study of crime are criminology and criminalistics. Criminology is generally defined as the science of discipline that studies crime and criminal behaviors. Specifically, the field of criminology concentrates on forms of criminal behavior, the causes of crime, the definition of criminality and the societal reaction to criminal activities ( 2000) Applied criminology also claims what is labeled as the field of criminal justice composed of the courts, police and correctional facilities. Criminology is more concerned with the analyzing the phenomena of crime and criminality and in performing scientifically accurate studies and in developing sound theoretical explanations of crime and criminal behavior ( 2000). Meanwhile, criminalistics is about investigating crime scenes and the science of scientific evaluation of physical evidences.                          HISTORY             The first civilizations had codes of law though these codes were not always recorded. The first known written codes were written by the ancient Sumerians and the first legislator was their king  who received a formal system of law in 32 articles ( 2001) . In Babylon, king  promulgated a law named “Hammurabi Code” in 1750 B.C. The Hammurabi Code was inscribed on a black stone shaft eight feet high. This ancient law consists of 285 laws pertaining to family relations, property rights, marriage, divorce, adoption of children, labor, commerce and crime. Among its provisions were the following, if a man destroys the eyes of another man, his own eyes must be destroyed, all able-bodied men must serve in the army and work on the irrigation ditches, slaves captured in war cannot own any property or by their freedom and women can own property, inherit property and engage in business ( 2001).             Similarly, some codes of conduct of religious origins or reference have been included in penal codes, forbidden behaviors resulting in real crimes in the states ruled by theocracy even in more recent times. In India, the British had notified 150 tribes such as the Phase Pardhi as criminal in 1871 ( 2000. ). Though this was repealed in 1952, the criminal stigmas still surrounds these groups, and are usually rounded up on suspicion of crime ( 2000). Natural law theory An alternative view of crime is derived from the theory of natural law. In this view, crime is the violation of individual rights. Since rights are considered as natural, rather than man-made, what constitutes a crime is also natural, in contrast to laws, which are man-made (1999). Adam Smith illustrates this view, saying a smuggler would be an excellent citizen, "had not the laws of his country made that a crime which nature never meant to be so" (1999) Natural law theory thus distinguishes between criminality and illegality, the former being derived from human nature, the latter being derived from the interests of those in power ( 2000). The two concepts are sometimes expressed with the phrases "mala in se" and "mala prohibita". This view leads to a seeming paradox, since criminality is defined by the moral thought of the society while illegality is concerned with the whims or rulers and authorities ( 1999). Mala in se refers to acts that are inherently criminal while a crime mala prohibita are acts that are defined as criminal because the law decreed it so ( 2001).   THEORIES REGARDING CRIME Classical Criminology             The classical school of criminology is advanced by the writings of  and . These two writers were heavily influenced by the philosophical thought and ideas of their time like . These writers and key thinkers emphasized that hedonism, rationality and free will are the underlying bases of human action (1998). These philosophers believed that people come together and form a society to produce social stability and protection and that this arrangement is worth more to them than the personal freedoms they are going to lose in exchange for the benefits of a functional society (1998).             These beliefs can be best viewed on their own definitive perspective since the world that they are is vastly different from the world that we are living. Social life during this period is characterized as chaotic and tyrannical. Church leaders were oppressors of the masses and rulers and kings were corrupt and repressive against the peasants and the people.  Philosophers then began to form a theory that will explain the phenomena that is gripping their society.  Laws according to  are the embodiment of the social contract. The legislators chosen by the members of the society are charged with the responsibility of enacting laws and establishing penalties to be imposed if they are broken ( 1993) .              also emphasized that is was not within the authority of judges to make laws and set penalties. Instead  argued that the duty of the judge is to determine the guilt or innocence of a defendant without any hint of bias or prejudices and to sentence or impose the proper penalties again without any hint of bias or impartiality (1993). On his views on punishment,  stated that punishment in a crime is necessary since human beings are self serving and they will always maximize their personal pleasure even if this would means violating the rights and freedoms of others (1993).  therefore advocated that the idea of punishment is not to seek retribution or revenge but to be a wall or deterrent against crime and law breaking members of the society. But while he advocated penalties and punishment,  clearly said that if punishments are to successfully deter crime, penalties must have particular characteristics; it must be swift, certain, appropriate and fitting to the crime committed.             Meanwhile,   shared much in common with the ideas of . He argued against the cruel and inconsistent practice of criminal justice in his society while he forwarded the idea that the goal of a society is to bring order and organization to the chaotic legal system (1999). Like  argued that all human actions stem from a single motivation which is the pursuit of pleasure and the simultaneous avoidance of pain.  evidently believed that that man would engage in rampant criminality to maximize their personal pleasures if there is no control and rule in them and the society that they are in (1999). Penalties, sanctions and punishment are thereby established by law and to serve as an alignment to correct the individual pursuit of personal happiness with the collective interest of the community (1999).  openly expressed this idea when he wrote that “punishment is considered evil but a necessary evil to prevent a greater evils being inflicted on the society and thus diminishing happiness” ( 1993).             Like  then,  saw that the purpose of punishment is to deter crime and to revenge crime. He also argued that a punishment should be only severe as to produce just enough pain to outweigh the pleasures to be derived from continually committing the illegal act (1992).  maintained that punishment should be avoided if the end result which is deterrence form crime could be achieved effectively by less painful means such as education ( 1992).  opposed punishments that were groundless either because no real crime had been committed or because more good than evil was accomplished by an offense ( 1992). He also denounced the situations in which the evil of the punishment exceeded the evil of the offense. It was in this idea that he opposes the proposal of capital punishment for heinous crimes.              and  explored the idea and search for the answer on why people commit crimes while other people do. For them the issue was irrelevant; criminal motivation was given and their primary concern was social control.   The Positivist View on Crime             The positivist school of thought on criminology was developed during the second half of the nineteenth century and many writers and researchers attributed this rise to the works and writings of and his two students namely  ( 1995).  Positivist criminologists focus on criminals not on the crimes as classical criminologists do. Their goal is to discover the underlying causes of criminal behaviors. Positivists reject the classical doctrine of human behavior in general and criminal behavior in particular as the end products of individual’s rational exercise of their free will ( 1995). Instead, the positivist school forwarded the idea and assumption of determinism.             Positivist have adopted the techniques of the physical and natural scientist in proving and investigating the nature of a crime, Positivist criminologists advocated the use of the scientific method in analyzing and studying crime. Positivists maintained that instead of being punished, offenders should undergo treatment with the goal of rehabilitation. Proponents of positivist called for more flexible correctional strategies such as indeterminant sentencing, whereby an offender is institutionalized for the period of time necessary to effect his or her rehabilitation ( 1995).             Critics and other writers meanwhile criticized the positivist school on their own perspective on crime. Critics have said that positivists tend to heavily rely on official statistics and numbers to study crime and criminals ( 2000). Others have also pointed out that different human reactions and emotions cannot and will not be properly measured by a positivist criminologist ( 2001). Differential Association and the View on Crime             One of the most general theories of criminality was initially proposed in 1934 by   in his theory of differential association. This theory simply states that individuals become predisposed towards criminality because of an excess pf contacts that advocate criminal behavior ( 1924). Due to these contacts a person will tend to learn and accept values and attitudes that lean towards criminality.             ’s theory was strongly influenced by  theory pf personality, the “looking glass self”. The main propositions of the differential association  theory is that criminal behaviors are learned, criminal behaviors are learned through interaction with other  persons in a process of communication, the principal part of learning of criminal behavior occurs within intimate personal groups ( 1924). This theory also stated that when criminal behavior is learned, the learning includes techniques of committing the crime and the specific direction of motives, rationalizations and attitudes and that the specific directions of motives and drives is learned from  definition of the legal codes as favorable or unfavorable ( 1924).  Differential association forwards the idea that a person becomes delinquent because of an excess of definitions favorable to violation of law over definitions unfavorable to violation of law. According to this theory the process of learning may vary in frequency, duration and intensity and that the process of learning criminal behaviors by association with criminal and anti criminal patterns involves all of the mechanisms that are involved in any other learning ( 1924). Lastly, while criminal behaviors is an explanation of general needs and values, it is  not  explained by those general needs and values since  non criminal behavior is an impression of that same values and needs ( 1924). It is clear that differential association theory is not directed at the issue of the origin of crime in society but concentrates on the transmission of criminal attitudes and behaviors ( 1999). Some critiques of this theory states that the theory is concerned only with contacts or associations with criminal or delinquents behavior patterns and that this theory specifically states that persons becomes criminals because of an excess of association with criminals ( 1999). Other critiques is that a comprehensive theory of criminality and crime should provide more explanation of the origin of crime, it is a general theory therefore it is difficult to either empirically prove or disprove it by research, the theory fails to account for all forms of criminality and lastly, the theory fails to acknowledge the importance of non face to face contacts such as media influences ( 1999).   The Universal Explanation of Crime             After discussing theories regarding nature of crime and the behavior of criminals in the society, a great and important question must be asked and must be provided with answers. Is the universal explanation of crime possible or desirable? The most likely respond to this question would be in the negative. The universal explanation of crime is not possible and desirable because of diverse and equally vital factors and conditions around the world today.             Crime cannot be totally explained since the definition of crime depends on the perspective and standpoint of an individual or society. An act can is viewed by an individual as criminal can be viewed by another individual as legal and official. One example of this is the crime and law against incest. While incest is generally defined as sexual marriage or activity between very close family members. It is a taboo and a crime in most societies but the over all definition of the crime of incest is varied when different cultures and societies around the world are consulted. In Korea incest is defined as having a relationship with the opposite sex with the same surnames while in South East Asian countries, incest is frown upon if the parties involved are blood relatives ( 1993). It is therefore difficult and tiring to extract the true definition of a crime since definitions are based on the cultures used by specific members of a society. Another example is the crime of polygamy. Different countries and different societies forward different and diverse definition of the crime of polygamy. In Islamic countries it is legal and it is authorized for a man to marry more than one woman since the more wife a man has the more he is blessed and loved by Allah, for them their point of view this act is perfectly legal since this is their culture, this is their custom and natural law (1993). This same custom and culture of polygamy can be frowned upon by some Western nations since their culture and the prevailing legal system dictates them to have only one wife. the idea on the holistic definition of the crime of polygamy is shattered since different cultures have different interpretations on the true definition and meaning of certain crimes. Definition of crime is not also possible because of the rapid change and technological development that the global community is undergoing. Developments and innovations like the internet, cds mps and other gadgets have hindered the pursuit for the true definition of crime ( 2005). Technology is moving so fast that sometimes, the world is failing to catch up to it. Some malicious individuals have used modern technology like the internet to their own personal and illegal use. Credit card frauds, password stealing, hacking, spreading of malicious softwares and viruses are some of the “crimes” that is being experienced right now but these crime remain unpunished because of the slow adaptation and adjustment of the criminal system of the world ( 2005). Some of these crimes are not even punished because policymakers and legislators are slow to comprehend and understand these criminal activities ( 2005). The rapid progress of technology therefore makes new and latest tech crimes “undefined” by the society. Another reason why there is no universal definition of crime is that crime and the definition of crime is based on the view point of a society. A society labels and categorizes acts that are illegal and legal, authorized and unauthorized. The society and the culture that is built in that society builds a standards where certain acts and deeds are considered illegal and therefore classified as crimes. As previously mentioned above, what is legal for a specific country or society can be illegal and prohibited on another country or society. The universal definition of crime is only possible if all the societies of the world have common, shared and mutual set of values and tradition to follow. The universal definition of crime is feasible if a collective and monolithic culture globally exist.   CONCLUSIONS             Crime has a definitive impact on the impact on the society and the individual. Crime as suggested above pushed individuals to form society to check and to safeguard their rights and properties from their pleasure seeking and hedonistic self. By coming together and forming social organizations, man was able to protect himself from the harm that is presented by other individuals. Mann delegated the task of punishment and penalties to the institutions created by societies such as correctional facilities, mental institutions, police force and the justice system. This step is done to provide rehabilitation and treatment for people who commit crime.             Various writers and scientist have also formulated theories to explain crime and criminal behavior. Among these theories are the classical view on criminology advocated by , the positivist point of view forwarded by  and his associates and the differential association theory promoted by Edwin . The classical view expresses crime must be punished and that the pain of punishment must exceed the pleasure that will be derived from an illegal act to deter potential criminals. The positivist school meanwhile argued that crime must be studied methodically and systematically like the natural science by using the scientific method in investigating criminal behavior. The last of these theories is the idea forwarded by Edwin  that stated that criminal behavior can be learned and absorbed by an individual if there is frequent and recurrent contact with criminal behaviors.             Finally it is stated that the universal definition of crime is not possible because of many factors that influences the way individuals and societies view the nature of a crime. Technological innovation and progress, diverse and dissimilar cultures and the assorted socio-economic, cultural factors inherent in each culture and society prevents such effort at universally defining crime.

CRIME AND CRIMINAL STUDY

INTRODUCTION The world we are living in is full of despair and hopelessness. People all over the globe are suffering from some...