CHAPTER IV: LAW THE PATH OF LAW by Oliver Wendel Holmes Lecture questions o o o What is the path of law?

w? Why is law not a mystery but a well-known profession? What should be studied or read in order to become good lawyers?

When we study law we are not studying a mystery but a well-known profession o We are studying what we shall want in order to appear before judges, or to advise people in such a way to keep them out of court It is a profession because in societies like ours the command of public force is entrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees

The object of the study of law is prediction o Prediction of the incidence of the public force through the instrumentality of the courts

The means of study of law are: Reports, Treatise and Statutes. These are what properly have been called the oracles of the law. The Path of Law o Make these prophecies more precise, and to generalize them into a thoroughly connected system.

Legal duty is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court If you want to know the law and nothing else o Look at it as a bad man, who cares only for the material consequence which such knowledge enables him to predict Not as a good one, who finds his reason for conduct Confusion of thought can result from assuming that the rights of man in a moral sense are equally right in the sense of Constitutions and the law

The Realist school o It emphasizes the element of uncertainty in law and the part played by the personal characteristics of the judge Law is defined not as a set of logical propositions but in terms of official actions Law is what courts (or other officials) do not what they say

A NEW LEGAL ORDER by Jose Diokno Major problems of Filipino then and now: Food and Freedom, Jobs and Justice Two things needed in order to solve our problems 1. Our society must not be militarized o What happened under Marcos should not happen again We should expose any violations of our rights by the military, by the police, or by anyone else 2. We need a new legal order o Government should seriously attend to the problems of povery, unemployment, underemployment, low wages, social injustice, and foreign control The old order did not stand for authentic democracy To have authentic democracy that government should also represent the interests of the poor Government needs restructuring to build permanent channels of two-way communications between the poor and the political elite

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 The method of representation should be changed so that people will be represented not only on the basis of area, but also in the basis of sector, and within each sector, the basis of income Fashioning new structures, structures to enlist the talents of citizens to identify, explain and solve national and local problems o These changes should be accompanied by a change in our mentality We must believe in ourselves, in our capacity to overcome hardship, in our ability to make the right decision We must have faith in the people We must view public office as a way to serve the people, not to profit at their expense

REFLECTIONS ON LEGAL AID IN THE PHILIPPINES by Rene Sarmiento Lecture questions o o o o How could we enhance legal aid? Definition of legal aid Therapeutic legal aid vs. Transformative legal aid Recommendation to improve legal aid in the Philippines

Legal aid o The synergy of skills, experience and generosity, responding to a felt need. It is kindness in action, interweaving craftsmanship and social responsibility.

Two kinds of legal aid 1. Therapeutic legal aid Solely addresses the clients problem Applying the legal solution found in statutes and jurisprudence

2. Transformative legal aid Lawyer and client work together as a team to identify the problem and to determine the causes that brought about the problem In brief, proactive, imaginative and empowering

Problems common to the two kinds of legal aid o o o Not too many lawyers are involved in legal aid Lack of funding Problem unique to transformative legal aid, its practitioners are branded as subversives or leftists

Recommendations to improve legal aid in the Philippines o o o o Work for the revision of the legal curriculum Lobby congress to assign a higher budgetary priority to legal aid Give annual awards to legal aid lawyers Reorient the cold war curricula in the police and military academies so that they will be attuned to post-cold war realities Require lawyers to do legal missions to the provinces once a year

LEGAL EDUCATION AND PUBLIC POLICY: PROFESSIONAL TRAINING IN THE PUBLIC INTEREST by Harold Lassell and Myres Mcdougal Lecture questions o o How do you reform the curriculum of legal education? What is the peculiar responsibility of a lawyer?

Steps toward the effective reform of legal education o Clarify ultimate aim Must be a conscious, efficient and systematic training for policymaking

Clarify values Giving a new sense of purpose and training in the skills and information which should be common to all policy-makers

The lawyer bears a peculiar responsibility o A lawyer is a member of a learned profession, of a skill group which has temerity to make a profession of tendering advice to another It is the lawyers responsibility to acquaint himself not only with what the learned have thought, and with the historical trends of his time, but also with the long-term interests of all whom he serves and the appropriate means of securing such interests

Skills of thought that the lawyer must acquire o Goal-thinking Requires the clarification of values Democratic morals is valuing the dignity and worth of the individual hence a democratic society is a commonwealth of mutual deference o Mutual deference is a commonwealth where there is full opportunity to mature talent into socially creative skill, free from discrimination on grounds of

religion, culture and knowledge are widely shared and are not concentrated in the hands of a single group, class or institution A legitimate aim of education is to seek to promote the major values of a democratic society and to reduce the number of moral mavericks who do not share democratic preferences

Trend-thinking First step in the implementation of values This considers the shape of things to come orient himself correctly in contemporary trends and future possibilities Needs to be especially sensitive to time

Scientific-thinking Also required in the implementation of values This is acquaintance with the various methods of observations Contributes to skill in the practical management of human affairs

The very act of taking thought and of acting on the basis of thought The policy-maker needs to guide his judgment by what is scientifically known and knowable about the causal variables that condition the democratic variables

CHAPTER V: PEACE

FORGING A CULTURE OF PEACE: HOPE FOR COMING GENERATIONS by Bishop Antonio J. Ledesma Lecture questions o o o What is a culture of peace? What is a way of peace? Peace as the wholeness of life.

Why a culture of peace? o The globalization of the economy and mass media may have brought about an homogenized pop culture; but it has also provoked reactions of fundamentalist groups, stressing their ethnic identities

Culture and religion o Culture Provides us with a frame of reference, a mental and affective how as we grow up and take our place within the community Means that way in which a group of people live, think, feel, organize themselves, celebrate and share life. In every culture, there are underlying systems of values, meanings and views of the world, which are expressed, visibly in languages, gestures, symbols, rituals and styles Two dimension in every culture o Conflicts Arise when we fail to understand the inner meaning of the external aspects of another culture External, material aspects of languages gestures, symbols, rituals and styles Internal, spiritual aspect of values, meaning and views of the world

Peace o For the Scholastics Looking at the cosmic order of the universe Not just the absence of war. It is the wholeness of life where every person can live with dignity

Pope Paul VI New name for peace is development, sustainable development

Pope John Paul II Looking inward: Peace of the heart is the heart of peace Looking outward: Peace is the fruit of solidarity

For the Hebrews

Shalom: connotes the total well-being of the individual, both material and spiritual

For the Filipinos Salamat: every time we say thanks, we are really invoking Gods peace for our neighbor

Three source of culture of peace o o o Religious traditions United Nations representing the humanity that wants and needs peace Our own People Power Revolution

Educating for Peace o Notre Dame University two-fold objective to peace education o Better awareness of the root causes of conflict Encourage individual and social action

NDU paradigm for peace education Personal peace to overcome violence to ones person Economic development concerns to counter structural violence Human rights promotion to counter political violence Inter-cultural solidarity to address any form of violence against cultures Measures against the violence of militarization Environmental care to avoid or stop ecological violence

Vatican document on the four levels of dialogue The dialogue of life The dialogue of action The dialogue of theological exchange The dialogue of religious experience

EO 125: DEFINING THE APPROACH AND ADMINISTRATIVE STRUCTURE Lecture questions o o How can we attain economic development and national prosperity? Sections 2, 3 and 4

COMPREHENSIVE AGREEMENT ON RESPECT FOR HUMAN RIGHTS Lecture questions o o Human rights abuses vs. Human rights violations Part III, Article 2 and Article 4

THEORY AND PRACTICE OF CONFLICT RESOLUTION: AN INTERNATIONAL PERSPECTIVE by Peter Wallensteen Lecture questions o What are the lessons from the theories of conflict resolution?

Lessons learned from the agreements or processes of accommodation o None of these wars has resulted to victory for one or the other contending parties Conflict resolution will only be possible at the right moment The need for a solution has made it necessary for parties to deal with parties that they would not previously accept to deal with Way of establishing contact can be many and innovative Third parties have played an important role in several of these situations Ceasefire or military withdrawals have been part of processes although demilitarization has been undertaken as part of a more comprehensive process Most of these processes have taken considerable time

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Empowering People to Build a Just Peace in the Asia Pacific By: Edmundo Garcia Conflicts- generally the result of unresolved issues, when the underlying causes of the conflict are not addressed decisively or not addressed at all. Origins of conflict in Asia: 1. Governance politics of exclusion, repression and corruption 2. Development unequal access to resources and economic inequality 3. Culture discrimination of minorities and confronted by questions of identity and ideology 4. Territory disputes over boundaries and borders Factors which compound the risks: 1. Insecurity expanded by the unconventional global war on terror 2. Polarization deepened by unilateralism and corporate-led globalization 3. Diplomacy undermined by the focus from preventive to pre-emptive actions, by the weakening of standards and institutions

Key questions: 1. How to deal with diversity? - Multi-track approaches must address politics and power at different levels. 2. How to deal with insecurity and instability? How to transform Asias arc of insecurity and instability? - Underscore respect for others - Focus on sustainable development and accountable governance - Political tolerance and reconciliation - Human security that is both comprehensive and common. House of peace: Foundation: Respect for human right Socio-economic reforms Pillars: Political and constitutional reforms Security sector Roof: Human security 3. How to work towards sustainability? - Ownership of the process (provide viable options, understood and owned by the people) - Relationships (reconciliation among divided societies) - Structures (social changes that help improve life of the vulnerable and most disadvantaged) - Institutions (to ensure that what is attempted is achieved in the most effective and just manner) Exploring response: - Stress the pre-eminence of cooperative efforts - Link related levels of reality - Bring together different stakeholders Journey of Hope - Pursuit of a just peace requires a marathon mentality

Seek Peace, Pursue It Pastoral letter of CBCP Condemnation of any unjustified foreign interference in our countrys affairs Condemnation of all attempts to seize power by armed means except: 1. Where there is manifest, long-standing tyranny 2. Takes as last recourse 3. There is reasonable or well-founded hope of success 4. The good to be obtained is proportionate to the damage and harm that would be inflicted A just social transformation is the path to peace (development is the new name for peace). Development to be authentic and integral must promote the good of every person and of the whole person; the fully rounded development of the whole man and of people.

Peace is not simply the absence of war, but the fruit of justice and love. Justice not only requires respect for the fundamental rights and dignities of a person but also imposes the duty of promoting the common good. Common good the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfilment more fully and more easily. Moral causes for the absence of peace: All-consuming desire for profit Thirst for power Suggested agenda 1. Transforming values and mentalities into those truly oriented to God and to the common good 2. Dismantling the structures that favor the few and discriminate against the greater majority 3. Designing and implementing truly transformative programs of agrarian reform, ecological promotion and socio-economic development 4. Peacefully resolving questions and self-determination of various froups in our country 5. Coming decisively to a moral and political resolution regarding the tension of national autonomy and interdependence among nations 6. Developing a satisfactory and effective educational system 7. Freeing the disenfranchised sectors from various forms of bondage 8. Effectively checking graft and corruption 9. Conscientiously observing the laws of our country 10.Empowering people in law and in fact Peace is the work and fruit of solidarity. Solidarity a firm and persevering determination to commit oneself to the common good

VI. PUBLIC ACCOUNTABILITY AND GOOD GOVERNANCE Seven Principles of Public Life Nolan Report Committee on Standards in Public Life 1. Selflessness - Decisions in terms of the public interest 2. Integrity - Not to place themselves under any obligation that might influence them in the performance of their official duties 3. Objectivity - Make choices on merit 4. Accountability

Accountable and transparent to the public regarding their decisions and actions 5. Openness - Give reasons for their decisions 6. Honesty - Duty to declare conflicts of interest in public and private life 7. Leadership - Promote and support these principles by leadership and example

The Origins of Ethical Frameworks in Public Administration Darell L. Pugh Common traits of professions - A cast of mind - A corpus of theory or knowledge - A social ideal - A formal organization to promote its interests - A national academy to recognize outstanding leaders - Ethical standards Ethical frameworks for Public Administration Bureaucratic ethos

Contained in five concepts: - Efficiency - Efficacy - Expertise - Loyalty - Accountability Social movements that advance bureaucratic ethos Social Christianity sought to justify social change in terms of a Christian doctrine -reform of social institutions is the key to personal moral salvation Progressive political movement -fundamental acceptance of the utility of bureaucratic principles in quest of improved public planning and service delivery. -aimed to change the market system model to a model that grounded political decision making in modern science and technology Scientific management movement -sought to place economic activity on a scientific basis by eliminating tradition and convention in favour of measurement and codified language Social science movement -sought to instilled political science and economics with objective instruments of social observation and analytical techniques and to provide a mechanism for organizing research and coordinating it among allied fields Professional stream of public administration itself Methodology Content values are assessed against established rational goals and objectives using intrumentalism and unilateralism as criteria for action Democratic ethos Content values: 1. Regime values - not only from the Constitution but also from political writings, major speeches, papers of leading American statesmen, historical treatises and the decision of the United States Supreme Court 2. Citizenship - the ideal of a citizenry informed about government and active in its operation 3. Public interest - what men would choose if they saw clearly, thought rationally, and acted disinterestedly and benevolently 4. Social equity

- the spirit and the habit of fairness, justness, and right dealing which would regulate the intercourse of men with men - synonym of natural right or justice Social origins of democratic ethos: - American political institutions particularly the courts - Political movements - Urban reform movement - Amemrican civil rights movement Methodology -deductive (general to specific) -dialectical (questions plus answers equals logical conclusion) -deontological (rightness or wrongness is determined by referring formal rules of conduct rather than the actions result or consequences) The framework requires a thorough grounding in history and political philosophy. Furthermore, there is a heavy reliance on the case study as a means by which to analyze and test ethical propositions. Codes of Ethics Three principal virtues of codes: 1. Objectivism (the belief in external transcendent values) 2. Community (the notion that moral behaviour is not simply a matter of private preferences and personal integrity but is and should be subject to the communitys judgment) 3. Courage (the idea that codes can promote courageous behaviour) Critiques of codes: 1. Public administration was too divers an enterprise for a code 2. Such a code was unenforceable 3. Codes were too preachy Bureaucratic ethos is teleological, empoyes instrumental rationality, and is predicated on the values of capitalism and market society. Instrumental rationality- enables the individual to distinguish between good and evil, false and genuine knowledge, and accordingly, to order ones personal and social life. Democratic ethos is deontological, is based on substantive rationality and emanates from classical values of the state and higher law. Substantive rationality- Individuals might consider a range of possible values or actions, and attempting to make them consistent. For example, pursuit of family or religious values may be difficult in modern society, given economic pressures and dominance of bureaucratic organizations. Three common characteristics of successful codes of ethics: 1. Provides at least a modest level of behavioural guidance 2. Written to be applicable to a variety of occupations in the same profession 3. They have an effective mechanism that ensures compliance

Notes on photocopied material (abuse of women in war-stricken countries) Human greed and addiction to war as a method of resolving conflict causes the spreading of carnage and suffering. To change the world for the better, to make it safe for the feminine, which is to make it safe for everyone, women must work together. When women work together, the entire society benefits. War took the I in me. At the other side of the war, a woman struggles to maintain her self even as the ground under her feet is dissolving in a sea of fear and suspicion.

A Palestinian woman defined fear as the feeling of being in a perpetual process of dying. When a man is injured in war, he is a hero. But when a woman is raped or mutilated because of rape, she is more likely hidden, an object of shame. If we are to understand war fully, we need to understand not only what happens on the front lines, but what happens on the back lines as well, where women are in charge of keeping life going. War often enters homes through the kitchen door. Women sense wars onset early, as they deal with shortages of food, and the closing of schools, and often their own reduced freedoms. What happens to women is often an indicator of what is to come for the rest of the society, be it war or peace, economic marginalization or economic development, illiteracy or education, stagnation or progress. The increasingly precarious status of women was seen as a secondary issue, a distraction from the bigger political debates. Soon, every politician, business person, professional, Iraqi or foreigner alike became vulnerable to kidnapping. The issue has become big enough to actually impede development efforts in the country. Womens bodies are treated as part of the battlefield. Rape is used to achieve political and social goals, from the destruction of the social fabric of the society, to avenging historical acts, to political propaganda. Through it all, the humanity of each woman, each person, is ignored. Ignored, too, is the quality of daily life that follows such women, who will never be free of the excruciating memories of theri attacks, not the ongoing pain and embarrassment of fistula, mutilation, or HIV infections that relegate so many so needlessly to lives of outcasts, beggars or prostitutes. Yet, when war ends, women are the first to pick up the pieces. Where there is no marketplace, they go door to door. When homes are destroyed, mothers and daughters haul stones to rebuild or plow fields together. Women often speak about war not as a series of battles, but as a journey that often begins with abrupt displacement from all that is familiar. Sustainable peace and economies are not sustainable at all if women are not a critical part of making them happen. DISTINGUISHING MARKS OF TRUE LEADERSHP by Jovito R. Salonga Leaders are not necessarily those who occupy the highest positions in the government Traits that make a person a true leader

1. Vision The capacity to see through the surface of things and perceive what must be done in a given situation Distinguishes transactional leadership from transforming leadership 2. Competence The fitness and capacity to handle a particular task It is our duty to find and develop this gift so we can use it for the benefit of others Transactional leadership views the world in terms of transactions and bargains and deals Transforming leadership sees the need for change and rises above patronage, dole-outs, and money politics

3. Hard work and perseverance Our vision must be a vision in detail, a concrete program of action The mark of a true Christian leader is integrity and self-discipline Christian leadership means having to suffer, to face criticism, humiliation and possibly even death

4. Moral sense The sense of right and wrong, and a capacity for self-discipline What the Philippines need is not simply popularity in poll surveys dogmatic assertions of doctrinal correctness but ethical, moral leadership

5. Service The readiness to give ourselves in serving others The authority by which we should lead is not power but love, not force but service

ENGENDERING DEVELOPMENT: AND OVERVIEW OF THE PHILIPPINE EXPERIENCE by Marilyn B. Barua-Yap Development o o o A process of expanding the real freedoms that people enjoy Requires the removal of major sources of unfreedom The sustained capacity to achieve a better life

Capacity to do embraces the range of activities and situation a person can engage in and utilize to achieve a better life Capacity to be is premised on those personal and environmental resources a person can mobilize or harness to attain a better life Gender inequality and the feminization of poverty o Biological determinism The biological nature of women is used to confine them to their reproductive functions, restrict their capacities for doing and being, confer on men superior physical attributes and legitimize mens domination of women

Gender The culturally specific state of characteristics that identifies the social behavior of women and men and the relationship between them A social construct

Gender stereotyping Where particular traits, characteristics and roles are ascribed distinctly and strictly to women and men

i.e. The attribution of weakness/emotionalism to women, and strength/rationality to men

Private/public dichotomy The home is the private sphere where women must be The public sphere, politics, government, etc., is the natural domain of men. Concerns of men are thus worthy of public attention and engagement

Sexual division of labor: Reproductive vs. Productive Reproduction refers to work done inside the home Production refers to the creation of goods and services done outside the household In the Philippines, production is given more value than reproduction. Reproductive work carried out by women while crucial to the survival of the families is generally not considered as real work and should not be remunerated Perpetuation of the multiple burdens of women While women increasingly become engaged in the productive sphere, men do not correspondingly increase their participation in the reproductive arena

Unequal gender relations erode the personhood of women diminishing their self-esteem, dignity and self-worth

Womens gender issues can be met using these mechanisms o The preparation of agency inputs for sectoral performance assessment reports, public investment plans and other similar documents Agency performance commitment contracts, indicating key areas for gender equality All annual budget proposals and financial plans

Philippine Plan for Gender-responsive Development (PPGD) o A thirty-year plan that provides a perspective framework for pursuing gender equality Six major spheres that PPGD addresses

Individual sphere Personal development is the thrust Programs that improve womens self-worth via consciousness-raising advocacy

Family sphere Encourage the formation of families that are characterized by a sharing of responsibilities

Socio-cultural sphere Consciousness-raising is emphasized especially through the agency of the educational system and the media so that gender stereotyping and discrimination can cease to persist

Economic sphere Equality in economic opportunities between men and women

Political sphere Empowerment of women through their participation in political institutions and processes

The Gender and Development (GAD) Approach o This proceeds from the perspective that the nature of gender relations affects the pursuit of national development goals Five levels to overcome individual and structural causes of gender discrimination Material welfare i.e. health and nutritional status improving material well-being is a fundamental step towards achieving womens development

Access to resources Afford women equal access to appropriate and enabling resources

Conscientization Process of becoming aware of the extent to which problems arise not from individual inadequacies but from the systematic discrimination against a social group to which an individual belongs

Participation Deals with having to share or take part in decision-making

Control Ability to direct or influence events to protect ones interests

Reflections and recommendations o Womens gender issues cannot be peripheral to eh pursuit of national development. Rather, they are vital core issues foisting comprehensively, permeating challenges that significantly determine the quality and sustainability of development Making government work to achieve gender equality is a rational strategy Government is not simply the Executive branch, but embraces the Legislative and Judicial branches as well

THE ROLE OF THE JUDICIARY ON ENVIRONMENTAL PROTECTION AND PROBLEMS FACED BY THE COURT IN FULFILLING THEIR ROLE by Justice Portia Alino-Hormachuelos The role of the Judiciary With regard to environmental protection and preservation is to be guardian of the rule of law to the end that it will be an instrument in protecting the natural environment for present and future generations

Problems faced by the judiciary in fulfilling their role 1. Technical and evidenciary considerations Jurists are called upon to maintain the cold neutrality of an impartial judge in resolving the controversies before them notwithstanding their own feelings and preferences

2. Poverty and access of the people to the justice system The enforcement of these laws is within the primary jurisdiction of administrative agencies Private complainants who are victims of environmental violations are too poor or unorganized to put up a sustained fight against erring companies

3. Court docket congestion Courts everywhere are heavily burdened by clogged dockets

Environment cases are treated just like any ordinary case except when the offender involved is under detention

4. Harassment suits The public attorneys cannot represent then since they do not qualify under the minimal income requirement for the government for free legal assistance

5. The need for technical expertise in environmental litigation Main limitation for inadequacy of capacity for environmental law in developing countries o o o o o Lack of adequate consultation among relevant national institutions Inability to mobilize sufficient public interest and participation Lack of enforcement mechanism Lack of essential material resources and trained personnel Multiplicity of laws and overlapping jurisdiction

CHAPTER VII: CRIMES PUNISHMENT AND PARDON

WHAT IS LEGAL PUNISHMENT? THE EXPRESSIVE FUNCTION OF PUNISHMENT by Joel Feinberg and Jules Coleman Punishment is the infliction of hard treatment by an authority on a person for his prior failing in some respect Symbolic significance

Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval of reprobation Differentiates punishment from other kinds of penalties Differs from reprobation because punishment may be made without further hard treatment

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Punishment as condemnation o The expression of the communitys condemnation is an essential ingredient in legal punishment Punishment expresses the judgment of the community that what the criminal did was wrong

Derivative symbolic function of punishment 1. Authoritative disavowal i.e. Principal is not responsible for the wrongdoings of his agent and performs acts showing that he condemns that the offenses of his agent

2. Symbolic non-acquiescence: Speaking in the name of the people By failing to punish wicked acts, society endorses them i.e. Paramour killing

3. Vindication of the law Giving rise to doubts of what the law really means due to an officials evasion and unreliable enforcement

4. Absolution of others Punishing one of the suspects automatically absolves the others of blame i.e. A couple, both minors, while engaged in consensual sexual activity was caught. If the woman claims that she did not consent to the sexual activity, the man may be convicted of rape. If the man is found guilty of rape, the woman will be absolved from (moral) guilt.

ALTERNATIVES TO AND OPTIONS IN PLACE OF DEATH PENALTY by Rene Sarmiento Alternatives to death penalty 1. Adoption of a constitutional amendment that will provide unqualified abolition of the death penalty and for the reduction of death penalty to reclusion perpetua Reclusion perpetua without parole will be a reasonable vindication of the rights of the kin of the victims and will give ample opportunity to the offenders to repent and to reform

2. Enactment of bold legislative measures, coupled with decisive executive orders, that will address the shortcoming of the law-enforcement systems 3. Firm resolve on the part of the government, church and civil society to undertake and intensify human rights education at all school levels and among various sectors of society 4. A holistic processes of reflection, analysis and action by the government and non-government sectors in order to address the roots of violence, lawlessness and criminality