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Pooh-Bah
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Indeed, there is a reason to use the term "affirmative obligation." The law contemplates different levels of duty in different circumstances, and obligations can depend upon whether the pertinent conduct is misfeasance, malfeasance, or nonfeasance. Sometimes, a person can be responsible for the consequences of what he did, because he did it tortiously, but not for what he did not do. Sometimes, he can be responsible for what he did not do, say, because he is a public official required by a statute to do that thing and failed to. Sometimes, he can be responsible only for what he did illegally.
Jokes about lawyers and verbosity are easy to make, but words are the tools of the trade and are usually chosen carefully and carry particular meanings. You might as well laugh at a mechanic for insisting on using a phillips screwdriver in a screw with a phillips head rather than pounding the screw head out of shape by forcing a flathead screwdriver into it. Of course, if the mechanic messes up the screwhead, it might cost him some time and the price of a new screw to fix the problem, but if a lawyer uses the wrong tool, it might cost a client (and ultimately, the lawyer) millions of dollars. Or jail time.
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Carpal Tunnel
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Carpal Tunnel
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But dear Sparteye: is "affirmative" in this usage just an intensifier, or what additional
meaning does it convey? What loophole does it plug?
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Carpal Tunnel
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At the risk of incurring the wrath of the attorneys here, here's a ha'penny worth of my thoughts.
Affirmative means that you MUST prove something. In the issue at hand, a person has an affirmative obligation to avoid injury until backed into a corner. If he cannot retreat further, he then has the right to use lethal force to protect himself.
But he can't just raise the idea of retreat as a defense. He has to prove or affirm that he did it.
To put that into perspective, we have here in Colorado what is euphemistically known as the "make my day" law. If someone comes onto your property and inside your house and makes you believe that he's going to hurt you you can blow his shit away. You do have to prove he's across the threshold and that there was a credible threat of bodily injury. To that extent this is an affirmative defense. You have no obligation to run away, as you wold in the barroom scenario. You have to affirm that the circumstances are as you described them and get the DA's office or a jury to believe that you were in fear of your life. You do not have to prove that you were backed into a corner as you would in a barroom "medley."
TEd
TEd
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Pooh-Bah
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Dr Bill, the "affirmative" in this quote identifies the obligation as one requiring affirmative conduct; that is, it is something which the person must do. A (not modified with the term affirmative) obligation can encompass an obligation to refrain from certain conduct.
Perhaps an example from the field of negligence law would help illustrate this. An ordinary person, going about his business on a public street, has no affirmative duty to come to the aid of another. If say, that person see another has fallen and injured himself, the person has no legal (disregard moral obligations here; that's a different subject) duty to help the injured person. There is no affirmative obligation toward the injured person. However, if the person decides to come to the aid of the injured person, he has an obligation to not act in a way which would exacerbate the harm. So, in the example, if the person decides to help the injured party but in his ignorance moves the injured parties' broken leg and causes a much greater injury, he could be liable for that extra injury. As a volunteer rescuer, the person has an obligation (not affirmative) to refrain from carelessness causing extra injury.
Does this make sense now?
The use of the term "affirmative" does not relate to the burden of proof in this context. Rather, an "affirmative defense" is one which is pleaded by a civil defendant to avoid liability despite the plaintiff's presentation of a prima facie claim. The burden of proof is on a civil defendant to prove an affirmative defense. As to a criminal defendant, an affirmative defense imposes an obligation to present some evidence in support of the defense, after which the prosecutor is required to disprove it beyond a reasonable doubt; the ultimate burden of proof never shifts in a criminal case.
edited to fix typo
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Carpal Tunnel
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Dear Sparteye: thanks for the clarification. Here's another question: About fifty years ago
there was a story in newspaper about a crook pistol whipping storeowner, and starting to
empty cash register. Store owner lying on floor was able to get pistol and put a couple
bullets into the crook, who fled but collapsed on pavement outside. When cop assisted
storeowner outside to identify crook, the crook shook his fist at store owner, and declared:
"I'm going to sue you!" I never saw follow-up. Did the store owner have an affirmative
obligation to just lie still and let the crook "do his thing"?
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Pooh-Bah
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Well, of course, both time and difference of jurisdiction can affect the answer, but look again at the statement quoted above:
Michigan law imposes an affirmative obligation to retreat upon a nonagressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible
It seems to me that your robbed storekeeper was attacked without provocation rather than a voluntary participant in a mutual affray. Under the usual tort standards, he had no duty to retreat from the confrontation.
People threaten to sue all the time. People file complaints all the time. But that does not mean that they have viable claims which will survive judicial review.
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Carpal Tunnel
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Dear Sparteye: I was wondering if some nutty judge might say the storeowner was
no longer in danger, and had no right to shoot the crook, just to keep him from
taking the cash.
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Carpal Tunnel
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if the person decides to help the injured party but in his ignorance moves the injured parties' broken leg and causes a much greater injury, he could be liable for that extra injury. As a volunteer rescuer, the person has an obligation (not affirmative) to refrain from carelessness causing extra injury.
Does Michigan not have a "Good Samaritan" law protecting those who stop to help another? I know there is such a law in several states. Missouri & Arizon for two. I understand that in some states it applies only to physicians. Any insight on this?
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veteran
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said Mr. Bumble, “the law is a ass, a idiot.”
Ah, that explains it, Bill - not a quote from Dickens himself, but from a bumbling Dickens character.
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well, that's the whole joke, isn't it? their interchangeability?
Hmmm, maybe in "the law is an ass", eta, but I can't think of another example where both meanings could apply. "A pain in the ass" would always mean "arse", for instance.
"Ass" (=oaf/fool as well as donkey) certainly softens any associated phrases, though, even in cases where the less offensive meaning doesn't apply. A bit like "Jeepers Creepers" (or "Jeez Louise", as mentioned in Q&A) - an imaginary fig-leaf.
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