A Discussion Relating to Equity and its Restraint of Legal Rights and Powers - Free Essay Example

Sample details Pages: 11 Words: 3169 Downloads: 2 Date added: 2017/06/26 Category Law Essay Type Argumentative essay Did you like this example? EQUITY TRUSTS ASSIGNMENT 2014/ 2014 à ¢Ã¢â€š ¬Ã‹Å"à ¢Ã¢â€š ¬Ã¢â€ž ¢Legal rules allow the holders of legal right and powers to exercise them in the confidence that they are entitled to do so. The Function of equity is to restrain or restrict the exercise of Legal rights and powers in particulars cases, Whenever it would be unconscionable for them to be exercised to be full.à ¢Ã¢â€š ¬Ã¢â€ž ¢Ãƒ ¢Ã¢â€š ¬Ã¢â€ž ¢ G Watt, Trusts and Equity, (Oxford 2003) at 13 Critically examine this statement by reference to the nature and application of modern equity Where common law became inflexible and unfavorable litigants then appealed to the King; as a consequence such appeals were attend to by the Lord Chancellor at the Court of Chancery. This leads to realize that the use of the principles of common law may not necessarily give just and fair decisions. Don’t waste time! Our writers will create an original "A Discussion Relating to Equity and its Restraint of Legal Rights and Powers" essay for you Create order It was further deduced that the rigidness in the common law sphere was unjust to the litigants. In order to remedy such inaccuracies in the legal system a new principle was introduced, namely equity. Such legal rules and principles exercised by the Court of Chancery fashioned its self as the principle of equity. Equity was developed several hundred years after the introduction of the common law system to resolve disputes and introduce fairness to the system. According to thecommon law,equityis the set of rules that customarily supplemented the common law where the application of the common law would have operated too unsympathetically. As per Lord evershed à ¢Ã¢â€š ¬Ã…“The function of equity was to fulfill the common law: not so much to correct it as to perfect ità ¢Ã¢â€š ¬Ã‚ [1] Equity is not solely based on rules and principles of law but; is based on a personà ¢Ã¢â€š ¬Ã¢â€ž ¢s conscious. Equity will entail a person to act bestowing to his conscience. Equity does not al low any person to hide behind law and act unethically, against his conscious. It has been commonly said that one of the vital principals of equity is that it works on the conscience of the litigants. Nevertheless this does not inevitably mean that the cases are decided on the individual view of the judge what is à ¢Ã¢â€š ¬Ã‹Å"justà ¢Ã¢â€š ¬Ã¢â€ž ¢ in case without reference to principals and case law. As per Lord Browne Wilkinson, à ¢Ã¢â€š ¬Ã…“equity operates on the conscience of the owner of the legal interestà ¢Ã¢â€š ¬Ã‚ . [2] .The early chancellors were clerical people and their conscience was vastly influenced by religion and morality. The positive side being when equity is centered on conscience is that principles of equity are capable of setting aside the legally essential unfair endings, in order to turn up at just and fair endings based on the particulars of each case. In the earlier Lord Chancellor endeavored to form fairness and justice over the procedure of eq uity. This was criticized as the rulings are based on a certain remit of a particular chancellor and the remit was compared to the à ¢Ã¢â€š ¬Ã…“Chancellorà ¢Ã¢â€š ¬Ã¢â€ž ¢s footà ¢Ã¢â€š ¬Ã‚  by Bagnall Justice since the size of a foot changes to individuals just as the conscience of individuals varies .[3] It is essential as per the question to discuss about the functional distinction between law and equity. According to the reputed legal historian professor J.H Baker, If for reason of history equity had become the law peculiar to the court of chancery, nevertheless in broad theory equity was an approach to justice which gave more weight than did the law to particular circumstances and hard cases[4] the main function of common law is to set up rules to govern cases in general and to make sure by such establishment of rules people in general acquire lawful rights and powers that can be exercised of the will of such holders. The people who acquire right lawfully can exercise them with certain and do any act within the sphere. However there are instances where a proper adherence to legal rules will not be possible in order to meet the necessary ends of justice. à ¢Ã¢â€š ¬Ã…“So that the letter of the law is not applied in so strict a way that it may cause injustice in individual casesà ¢Ã¢â€š ¬Ã‚ [5] .In such instances it is essential to follow what is just. This is the time where equity comes into play. In this instance equity is brought to mitigate the rigidness of law. The main function of equity is to restrain the exercise of legal rights in particular instances where it may be necessary to avoid unconscionability. Equity is the means by which a system of law balances out the need for certainty in rule-making with the need to achieve fair results in individual circumstances. Litigants are not allowed by equity to act as the law provides and do any bad hiding behind law. Equity only intercedes in those circumstances where it is unconscionable f or the parties to the case to depend on the flawed common law legal system. Therefore we can understand that equity plays a major role by intervening into circumstances where necessary by not allowing unconscionable conduct. à ¢Ã¢â€š ¬Ã‹Å"Unconscionabiltyà ¢Ã¢â€š ¬Ã¢â€ž ¢ cannot be defined exactly; yet be understood as per the facts of any case. The concept of Unconscionabilty provides a useful mechanism for affording equitable relief against the strict insistence on legal rights or unfair and oppressive conduct[6] . In general we can say what Unconscionabilty is; à ¢Ã¢â€š ¬Ã…“Will commonly involve the use of or insistence upon legal entitlement to take advantage of anotherà ¢Ã¢â€š ¬Ã¢â€ž ¢s special vulnerability or misadventureà ¢Ã¢â€š ¬Ã‚ ¦in a way that is unreasonable or oppressive to an extent that affronts ordinary minimum standards of fair dealingà ¢Ã¢â€š ¬Ã‚ [7]. Even the legal rights that accompany the legal title to a fee simple absolute in possession, the most complete form of ownership known as to land law, are not beyond equityà ¢Ã¢â€š ¬Ã¢â€ž ¢s jurisdiction to restrain an unconscionable abuse[8]. The novel rights introduced by equity are numerous and out of which the most important is the trust, which is considered to be the most pioneering concept by equity to the English legal system. Explaining the trust through an example, if a testator by a will transfers property to his sister entreating her to hold the property for the exclusive benefit of his minor daughter, the common law would only identify the rights of the legal owner, which is the sister. Henceforth, if the sister evaded in her responsibilities under the trust, in such an instance, equity interferes to ensure that the son is not caused any injustice by ordering the brother to fulfill his obligations by holding the property for the benefit of the daughter. Therefore equity recognized two types of ownership which made it likely for ownership in property to be divided bet ween the legal owners and the equitable owners In the concept of trust, only the legal titleholder was accepted in law as the lawful owner of the property. But there were situations where there were persons who did have an interest over the property but who were not acknowledged on the title. Rights of such people were not accepted in common law. Consequently, there were persons who depend on this strict letter of the law to affect injustice to other party being à ¢Ã¢â€š ¬Ã‹Å"unconscionableà ¢Ã¢â€š ¬Ã¢â€ž ¢. For example, that A who is the legal titleholder to land invites B to build a house on his land and that the latter can live on it for the rest of his life and subsequent to the construction A refuses to let B live in the house, it caused injustice to B owing to Aà ¢Ã¢â€š ¬Ã¢â€ž ¢s unconscionable conduct. Thus equity intervened, which recognized the rights of B and ordered A to hold the land for the benefit of B thus complying with the principle that equity would not allow a à ¢Ã¢â€š ¬Ã‹Å"statute to be used as an instrument of fraudà ¢Ã¢â€š ¬Ã¢â€ž ¢[9] At the center of the implementation of a trust is the trusteeà ¢Ã¢â€š ¬Ã¢â€ž ¢s conscience that he has decided to hold the trust property for the benefit of the beneficiary. In a circumstance where such a trustee refuses to accept the rights of the beneficiary in the trust, equity will intervene and prevent him from gaining undue advantages of the trust property. However, it is to say that in practice, modern equity is encompassed principally of substantive and procedural principles which simply permit the courts a restricted amount of discretion. Equity exists at present as a separate system of law, developing to a system similar to that of the common law with rigid and inflexible rules which acquaint with a system of precedent. Nonetheless, the discretionary nature of equity still remains unharmed, but not to the degree it was recognized at the preliminary stages In contrast, in the present day the judges are to take into account the well-known equitable maxims in deciding whether a claimant is permitted to a remedy. Accordingly, as per Jessel MR à ¢Ã¢â€š ¬Ã…“today equity is not a court of conscience but rather a court of lawà ¢Ã¢â€š ¬Ã‚ [10].Henceforth, today equity functions on a system of precedent, going far-off from the early times, where pronouncements were constructed on conscionability, where ever and each individual case was treated as separately. Consequently,today a claimant who comes to equity must show that their claim has, à ¢Ã¢â€š ¬Ã…“An ancestry founded in history and in the practice and precedents of the court administering equity jurisdiction. It is not sufficient that because we may think that the à ¢Ã¢â€š ¬Ã‹Å"justiceà ¢Ã¢â€š ¬Ã¢â€ž ¢ of the present case requires it, we should invent such a jurisdiction for the first timeà ¢Ã¢â€š ¬Ã‚  [11] Nevertheless, today, judges still discuss to this concept of unconscionability[12]. Hence, today the judges could be said to still consider the case still on an individuality basis but more according to precedent. As already been explained Equity acts not according to the strict rules of the common law, but according to its maxims. Whereas the discretionary nature of equitable rights might at one time have meant that its measure varied with the length of the Chancellorà ¢Ã¢â€š ¬Ã¢â€ž ¢s foot, by the late eighteenth and early nineteenth centuries sit was certainly the case that equity would only provide relief in a number of prescribed circumstances. Lord Denning was of the opinion that à ¢Ã¢â€š ¬Ã…“the Courts of Chancery are as fixed and immutable as the courts of law ever where.à ¢Ã¢â€š ¬Ã‚ [13]The remedies may be discretionary, but it has been recognized that equity should only assist in recognized situations any attempt to provide justice on an ad hoc basis must lead to uncertainty (and thereby lead to injustice), increased litigation and à ¢Ã¢â€š ¬Ã…“palm tree justiceà ¢Ã¢â€š ¬Ã‚ [14]. Of course the functions of the equity acts to restrain or restrict, as an example if something injustice happens to the person who hold the power or person who is going to benefited from the trust as explained above the injustice nature of the substantive law can be mitigate by relying on the maxims of equity.[15] Equity will not permit a statute to be used as an instrument of fraud according to this maxim equity will not allow the trustee to go back from the trust if the trustee relying on any formality requirement such as the Land and Property Act 1925. Creation of a secret trust would be an excellent example of applying the equitable maxim of à ¢Ã¢â€š ¬Ã‹Å"Equity will not permit a statute to be used as an instrument of fraudà ¢Ã¢â€š ¬Ã¢â€ž ¢. A fully secret trust occurs when a testator leaves a gift in his will to a beneficiary but that beneficiary has agreed to hold the gift on trust for somebody else. On the face of the will it appears that T ha s left property to B absolutely, but in reality T intends to benefit. In order to understand why such trusts were necessary, it has to be remembered that a will is a public document and is open to inspection at the Probate Registry. A legacy under the testatorà ¢Ã¢â€š ¬Ã¢â€ž ¢s will to, for example, a mistress or illegitimate child would be likely to arouse suspicion, but the mistress or child could be benefited by way of secret trust, in which case only the secret trustee (often Tà ¢Ã¢â€š ¬Ã¢â€ž ¢s solicitor or a close friend) would be aware of the existence of the secret beneficiary. Secret trusts are rare nowadays, but still occur, for example when the testator is unable to make up his mind about who should benefit from his estate at the time of the execution of his will. When a testator left a gift to G, the solicitor of his common law wife he told G that he was to hold the gift for the benefit of his common law wife. H, the executor challenged the validity of the instructions to G, and the court held that they were analogous to a secret trust.[16] When there is evidence of a secret trust the law is on the horns of a dilemma because it has to choose between strict adherence to the formality requirements of the Wills Act 1837 and giving effect to the wishes of the testator. According to the Wills Act all testamentary dispositions must comply with section 9, and extrinsic evidence will not be admitted unless it is in order to resolve an ambiguity, or in the event of fraud. If the court is to enforce the secret trust, extrinsic evidence must be admitted.[17] The accepted notion is that secret trusts are enforced in order to prevent a statute becoming an instrument of fraud. If the terms of the Wills Act 1837 were to be adhered to the secret trustee would be allowed to take beneficially, an occurrence which equity could not condone. The leading case is the House of Lords decision in McCormick v. Grogan[18]. A testator left all of his property to G by will . Shortly before death he gave to G a letter which concluded with the words à ¢Ã¢â€š ¬Ã…“I do not wish you to act strictly on the foregoing instructions, but leave it entirely to your own judgment to do as you think I would, if living, and as the parties are deserving.à ¢Ã¢â€š ¬Ã‚ [19] It was held that there was no secret trust because the testator did not intend to create an enforceable obligation.[20] More important than the decision however are the speeches of Lord Hatherley LC and Lord Westbury. Both of their lordships were clear that the reason for the enforcement of secret trusts was to prevent the secret trustee from perpetrating a fraud. Their definition of fraud appears to have been a very narrow definition however, based upon preventing the fraudulent enrichment of the secret trustee. Lord Hatherley LC was of the opinion that à ¢Ã¢â€š ¬Ã…“it is only in clear cases of fraud that this doctrine has been applied cases in which the court has been persuaded that there has been a fraudulent inducement held out on the part of the apparent beneficiary in order to lead the testator to confide to him the duty which he so undertook to perform.à ¢Ã¢â€š ¬Ã‚  Lord Westbury stated that, in order to enforce a secret trust, à ¢Ã¢â€š ¬Ã…“you are obliged, therefore, to show most clearly and distinctly that the person you wish to convert into a trustee acted malo animo. You must show distinctly that he knew that the testator or intestate was beguiled and deceived by his conduct.à ¢Ã¢â€š ¬Ã‚ [21] This view of the fraud theory explains why the secret trustee is prevented from taking beneficially, but it does not really explain why equity enforces the trust. It would surely be sufficient if the gift was held on resulting trust for the estate, rather than for the secret beneficiaries. David Hodge [1980][22] argues that the trust should be enforced because of fraud, which he interprets in a wider sense than is evident from McCormick v. Grogan[23]. He argu es that fraud may be perpetrated not only by the secret trustee taking the gift beneficially, but also by failing to carry out the agreement. Failure to comply with the agreement is, he argues, a fraud upon both the testator and the secret beneficiary. Hodgeà ¢Ã¢â€š ¬Ã¢â€ž ¢s argument transcends the traditional view of fraud. However, it could be argued that evidence of the secret trust is admitted to probate because of fraud and, once the evidence is admitted, equity must give effect to the trust. The valid oral secret trust of land in Ottaway v, Norman [24]may similarly be seen as an application of the maxim that equity will not permit a statute [in this case both the Wills Act and the Law of Property Act 1925 s 53(1)(b)] to be used as an instrument of fraud. Brightman J considered that à ¢Ã¢â€š ¬Ã…“the basis of the doctrine of a secret trust is the obligation imposed on the conscience of the primary doneeà ¢Ã¢â€š ¬Ã‚ ,[25] but he did not discuss why the trust was exempt fro m the formality requirements of Sec53 (1) (b).[26] Bibliography Online Resources https://heinonline.org/HOL/LandingPage?handle=hein.journals/uwatlw26div=5id=page https://cw.routledge.com/textbooks/9780415497718/downloads/chap01.pdf https://heinonline.org/HOL/LandingPage?handle=hein.journals/denlj16div=5id=page https://books.google.lk/books?id=q_YfAwAAQBAJpg=PA147lpg=PA147dq=Hatherley+LC+and+Lord+Westburysource=blots=-M3L4bYJsbsig=yfd6O8ktfuz-PEf4TsN0iTX0iTEhl=ensa=Xei=-FjvU5WGBYyD8gXMjYLgDQved=0CCMQ6AEwAA#v=onepageq=Hatherley%20LC%20and%20Lord%20Westburyf=false Journal articles Lord denning law journal Evershed, Reflections on the Fusion of Law and Equity after 75 years, 70 L.Q.R. (1954) 326 at 328, paraphrasing Maitland. (3)Books Trust and equity by Garry Watt,5th Edition (Oxford University press, Great Clarendon street, oxford,OX2 6DP, United Kingdom) Exploring Equity Trusts by Sukhninder Panesar, 2nd Edition( Pearson Education 2010/2012 , Edinburgh gate, Essex CM 20 2JE, England) Unlocking Trust by Mohamed Ramjohn, 4th Edition (Routledge Taylor and Francis London and New York ) Essentials of Equity and trust Law by John Duddinton, 1st publish 2006, (Pearson Education Ltd, Edinburgh gate, Essex CM 20 2JE, England) Equity and Trust by Emma Warner-reed, 1st publish 2011, (Pearson Education Ltd, Edinburgh gate, Essex CM 20 2JE, England) 1 [1] Evershed, Reflections on the Fusion of Law and Equity after 75 years, 70 L.Q.R. (1954) 326 at 328, paraphrasing Maitland. 2 https://www.judiciary.gov.uk/ [2] Westdeutsche v Islington Borough Council [1996] AC 699 [3]Sukhninder Panesar, Exploring Equity Trusts, 2nd Edition, Pearson Education 2010 wcher v Cowcher [1972]1 WLR 425 [4] trust and equity by Garry Watt, op.cit. at 132-3 [5]earl oxfords case [6] Lord denning law journal [7] the common wealth v verwayen [8] Trust and equity by Garry Watt,5th Edition, Oxford University press [9] https://www.lawteacher.net/equity-law/essays/concept-of-unfairness-unconscionability-equity-law-essay.php [10] Re national funds Assurance Company [11] Re Diplock [12] Pennington v Waine [13] Lord Denning, [(1952) 5 CLP 8] [14] Cowcher v. Cowcher [1972] 1 WLR 425 [15] https://www.slideshare.net/AhmadFarouqAmir/maxims-of-equity-12601606 [16] Ibid [17] Wills Act 1837 S. 9 [18] McCormick v. Grogan (1869) LR 4 HL 82 [19] Ibid [20] Ibid [21]https://books.google.lk/books?id=q_YfAwAAQBAJpg=PA147lpg=PA147dq=Hatherley+LC+and+Lord+Westburysource=blots=-M3L4bYJsbsig=yfd6O8ktfuz-PEf4TsN0iTX0iTEhl=ensa=Xei=-FjvU5WGBYyD8gXMjYLgDQved=0CCMQ6AEwAA#v=onepageq=Hatherley LC and Lord Westburyf=false [22] David Hodge [1980] Conv. 341 [23] McCormick v. Grogan (1869) LR 4 HL 82 [24] Ottaway v, Norman [1972] Ch 698 [25] Ottaway v, Norman [1972] Ch 698 à ¢Ã¢â€š ¬Ã‹Å"Brightman Jà ¢Ã¢â€š ¬Ã¢â€ž ¢ [26] Law of Property Act s53(1)(b)

Utilitarianism And The Most Important Argument - 1679 Words

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Critique of Theoretical Framework Free Essays

string(119) " providing superior service to a clientele, they will seek to subcontract with the government and provide the service\." Religion, Social Policy, and Social Work Practice Faith-based Services in Public Welfare It is generally accepted that the church has been a locus of social service and social change throughout America’s history, and â€Å"that the concept of human services emerged, at least partially, from a religious base† (Ellor, Netting, ; Thibault, 1999, p. 13). Furthermore, it is recognized that the social work profession in the United States was influenced by a long history of religious traditions (Ellor et al, 1999; Hugen, 2012; Rosethal, 2006). We will write a custom essay sample on Critique of Theoretical Framework or any similar topic only for you Order Now The social welfare system that emerged in the United States, ormerly and presently, continues to be a mix of faith-based and secular organizations and groups with diversified perspectives and approaches (Ellor et al, 1999). The diverse perspectives and approaches to social welfare in the United States are rooted in an expansive array of worldviews and faith traditions. The U. S. is a pluralistic society characterized by a diversity of people, opinions, and religions (Monsma, 2012). The church is simply one of many places where social welfare ideations have manifested themselves, and the battles against social injustices have been fought. For many years a great variety of religiously affiliated organizations, colleges, hospitals, and social service agencies have received federal welfare funding. There is nothing profoundly new about the inclusion of faith-based organizations in the delivery of social welfare services to the disenfranchised and vulnerable populations (Karger et al, 2007). What is new is the prominence of postmodern, humanistic ideologies in social welfare that began in the 20th century (Hugen, 2012). The clashes between present-day humanistic and faith-based ideologies have spawned a lasting political debate over the correctness of federal government unding of faith-based social services. A major landmark for this political debate occurred in 1996 when the United States Congress passed a set of provisions under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) section 104†also known as the Charitable Choice clause (Daly, 2009; Wuthnow, 2004). Charitable Choice removed many of the restrictions on integrating religious content with faith-based delivery of social services, and positioned faith-based social service agencies as equivalent to secular social service agencies (Karger et al, 2007). The ovement to incorporate faith-based social service agencies was further fueled by President George W. Bush’s Faith Based and Community Initiative (FBCI) (Kennedy Bielefeld, 2006; Daly, 2009; and Wuthnow, 2004). The Bush administration aimed to do two things based on the core Judicious principles of Charitable Choice: first, to increase the amount of federal social-welfare resources going to faith-based organizations; and second, to protect the organizational autonomy and religious identity of these groups when contracted with the government (Daly, 2007). As a result of the Bush-era FBCI, eleven faith and community-based offices were created n federal agencies, and many states began to develop programs to expand the role of faith-based social services in delivering anti-poverty assistance (Reingold, Pirog Brady, 2007). The Bush-era faith-based initiative was strong enough that the Bush administration’s proposed budget for 2002 allocated nearly $90 million to organizations that expanded or emulated models ot tai tn-based social service programs (Twombly, 2002). Today, according to the National Center for Charitable Statistics (NCCS), there are 956,738 public charities, 97,435 private foundations, and 70,745 other types of nonprofit organizations (NCCS, 2013). According to the NCCS Core Files, public charities reported over $1. 59 trillion in total revenues, and $1. 9 trillion in total expenses in 2011. Of the public charities’ revenues: 22% came from contributions, gifts and government grants; 72% came from program service revenues, which include government fees and contracts; and 6% came from â€Å"other† sources (NCCS, 2013). Blackwood, Roeger, PettiJohn (2012) reveal that there was a 42. 3% growth in the number 501(c)(3) public charities from 2000 to 2010. In New York State alone, there are 1 5,362 religious or spiritually related public charities (IRS Business Master File 04/2010). Eric Twombly (2002), an affiliate of The Urban Institute, and Ira Colby (2007), a social work professor at the University of Houston, point out that many faith-based organizations, such as The Salvation Army, United Jewish Communities, Catholic Charities, and Lutheran Social Services have historically received government support and played a significant role in social service provisions in the United States. These groups are key players in many local areas in both direct ocial provision and setting government service priorities. The goal of this essay is to explore the political debate over Charitable Choice and the faith-based initiative, and secondly, to uncover the implications for social work practice and social work education from this debate. It is evident that faith-based organizations play a substantial role in the delivery of social welfare services in the United States (Nagel, 2006). To begin our exploration of this issue, we will look at the relevant worldviews and belief systems that support or refute the federal government support of faith- based social service agencies. Worldview/ Belief Issues Republicans have favored the privatization of social welfare and reinforced the value of nonprofits. Conservative thinkers believe that churches can address welfare better than the government and the secular social service system (Cnaan Boddie, 2002). Conservatives vigorously attack the belief that government should finance and deliver social services to the population (Karger et al, 2007). Conservatives argue privatization has become a paradox in social welfare because the private sector has been utilized in service provision and precedes the welfare state in many instances. David Osborne and Ted Gaebler (1992) assert in Reinventing Government that the private and public sectors have different roles. The government’s role should consist primarily of establishing the objectives of social policy, and the private sector role should consist of executing the policy. David Stoesz (2007) co-author of American Social Welfare Policy argues, â€Å"nonprofit organizations have been poor competitors, often losing out to for-profit firms† (p. 193). He further asserts that the nature of nonprofits make them less competitive than commercial firms, and when for-profits nter the same market, they often take a substantial portion of the market until nonprofits adopt the same management procedures and become more efficient. A large assumption is this: if for-profits suspect that they can generate a profit by providing superior service to a clientele, they will seek to subcontract with the government and provide the service. You read "Critique of Theoretical Framework" in category "Papers" Conversely, Ira Colby (2007) the Dean and Professor of social work at the University of Houston asserts that privatization of social services as the answer to creating ettective service provisions tor the poor is a â€Å"grossly erroneous assumption† (p. 194). According to Colby (2007) the catchphrases of â€Å"compassionate conservative† or â€Å"faith-based social services† are simply resurfacing ideas from a previous welfare era where greater reliance on the private sector was emphasized. Liberal ideology asserts that the government should play a central role in the provision of services†that government is responsible for ensuring that all people, regardless of status in life, receive needed services and supports that maximize their well-being and ability to participate in society. In essence, basic social services are the business of the government (Colby, 2007). Monsma (2012) identifies 5 factors that underlie and work to mold how liberals view the public role of faith- based organizations. The first is a strong emphasis on the free, autonomous, choosing individual. The second is a suspicion of traditional values and religion when they enter the public square. The third is seeing government as a potentially positive force for social change and improvement. Fourth is its embrace of the strict church-state separation, no-aid-to-religion standard. The fifth and final factor is the legacy of the nondiscrimination statuses of the 1960s. These factors, which can be onsidered beliefs, lead liberals to look negatively upon faith-based human service providers. The emphasis seems to be instead on freedom of choice and what the government can potentially do to improve societal conditions. Rev. Robert Owens (2001) posits that a negative correlation exists between the amount of funding received by religious organizations and the strength of religious mission. Owens, in his stance against public funding of religious organizations, argues that accepting government money to provide social service programs only deepens the confusion in communities about who works for whom. Accepting government money turns the state/ church relationship upside down†where the church works for the state. The solution then is to keep religious congregations independent of the influence of government. Political, Legal, Social Policy After the Great Depression, President Roosevelt’s New Deal political ideations focused on the structural conditions contributing to poverty and social inequality. Because of the depression, it had become obvious that personal morality could not prevent or be the primary cause of poverty (Nagal, 2006). Therefore, the public responsibility for ocial welfare was emphasized, and the popular moral dimension was minimized in social service delivery. Following the New Deal era, the Reagan administration shifted the focus back to the inclusion of faith-based organization in social service provisions. President Reagan considered religious organizations to be more effective than public or secular, nonprofit social service providers (Cnaan Boddie, 2002). Reagan went so far as to use the parable of the Good Samaritan as a metaphor for the cause of poverty. His perception of the biblical parable contrasted a bureaucratic aseworker against the Good Samaritan: The story of the Good Samaritan has always illustrated to me what God’s challenge really is. He crossed the road, knelt down, bound up the wounds of the beaten traveler, the pilgrim, and carried him to the nearest town. He didn’t go running into town and look tor a case-worker to tell him that there was a tellow out there that needed help. He took it upon himself. (Denton, 1982, p. 3 as cited in Cnaan Boddie, 2002) Reagan believed in volunteerism and the increased responsibility of private organizations to meet society’s social-welfare needs. The emphasis on volunteerism resulted in a decrease of government spending on social welfare initiatives in the 1980s. Reagan challenged the private sector to step up and meet the needs of society. He called on churches to provide for the needs of the poor within their own neighborhoods (Yancey, 2007). President Clinton took the challenge one step further and suggested that organized religion would be able to make a significant contribution to reducing the need for social welfare if each congregation in the United States would hire one person in need (Wuthnow, 2004). Here is what President Clinton said: Under this law [Charitable Choice], every state, when it becomes effective, every state in the country can say: If you will hire somebody off welfare, we’ll give you the welfare checks as a supplement for the wages and the training. It means, folks, when you go back home, your church can receive a person’s welfare check and add to it only a modest amount of money to make a living wage, and to take some time to train people and bring their children into the church, and make sure their children are all right and give them a home and family. I Just want every pastor in this audience to think about it. Just think about it. If every church in America hired one person off welfare, if every church in America could get some work to do that, it would set an example that would require the business community to follow, that would require the charitable and other nonprofit organizations to follow. We cannot create a government Jobs program big enough to solve the whole thing, but if everybody did it, one by one, we could do this Job. Associated Press, 1996, section A2) Throughout the later part of the 20th century, the federal government called on the Church to act as the primary safety net for people in need. History reveals that faith- ased organizations have always been a part of providing social welfare services. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 with the Charitable Choice clause and Bush’s Faith Based and Community Initiative simply increased the collaboration between faith-ba sed organizations and the federal government. Separation of Church and State Before the Charitable Choice provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, faith-based organizations contracting with the government had to remove all religious symbols from the room where service was rovided; accept all clients; refrain from any religious ceremonies; hire staff that reflected society, not the organization’s belief system; adhere to government contract regulations; and incorporate separately as an 501 (c) (3) nonprofit organizations (Cnaan ; Boddie, 2002). All this changed after the PRWORA of 1996. First, faith- based services providers retain their religious autonomy; second, the government could not curtail the religious expression or practice of faith-based services; third, taitn-based service providers were exempt trom complying with employment policies andated by the Civil Rights Act of 1964; finally, faith based organization contracting with the government were no longer required to establish a separate, secular 501 (c) (3) nonprofit organization (Cnaan ; Boddie, 2002). There are, however, some stipulations that remain in order to contract with the government. Faith-based organizations are fiscally accountable to use government funds for the intended social services and not for religious worship or proselytization. The purpose of this section of the law is to ensure a clear separation between church and state. In order or the government to remain neutral to the religious or secular character of organizations, both are offered an opportunity to participate in social service programs. As Rosenthal (2006) states in his conclusion on Charitable Choice Programs and Title VII’s Co-Religionist Exemption: By offering religious institutions the opportunity to participate in social service programs, Congress is faithfully engaging the constitutional principle of neutrality by affording these organizations the same opportunities as non-religious organizations. On the flip side, however, the Constitution requires that this participation be both ecular and non-discriminatory, so as to ensure that religious organizations are not benefited simply by virtue of their religious character. p. 665) Implication for Social Work Practice David Stoesz (2007) in his response to Should Social Services be Privatized asserts that the social work profession traditionally sides with social welfare. This leads to the dismissal of nonprofit agencies and blatant hostility to for-profit agencies. Because of this bias, social work education is devoid of the knowledge and skills that are es sential to business strategies in service provision. The implication for social work education would entail an increase of content in finance, marketing, information systems, and contracting. This would equip social workers to be more competitive in the new human-service market. With access to government funding that no longer regards the religious character of the service provider as a hindrance to the separation of church and state, it is likely (if not already evident by the NCCS reports) that more faith-based organizations and churches will engage in partnership with the public sector. This significant change has influenced social service delivery. As a social work practitioner, I could easily find myself working within a faith-based organization or at least collaborating with a faith-based organization in service delivery. Social work is a value-based profession. Although more secularized than ever before, social work can provide leadership in shaping the collaborative effort between the helping professions and faith-based organizations. This is especially important in considering the integration of spirituality and religion in social work practice. With the prevalence of faith-based organizations providing social services, it ould be beneficial for social work education to increase the content on ethical social work practice within religious settings. With an increased competency in the integration of social work practice with religion and spirituality, social work practitioners can further appreciate the efforts of religious organizations to address social problems. Social work should also â€Å"proceed cautiously to outline the parameters ot ethical social work practice in religious organizations† (Sherr et al, 2009, p. 64) so that service delivery does not cross the ethical line and become an opportunity for proselytizing. The profession of social work continues to realize the importance of religious and spiritual beliefs for clients. The importance of these issues in social work education is supported by the Council on Social Work Education (CSWE) Educational Policy and Accreditation Standard, 2. 1. 4: Social workers understand how diversity characterizes and shapes the human experience and is critical to the formation of identity. The dimensions of diversity are understood as the intersectionality of multiple factors including age, class, color, culture, disability, ethnicity, gender, gender identity and expression, immigration tatus, political ideology, race, religion, sex, and sexual orientation†¦ [Social workers] gain sufficient self-awareness to eliminate the influence of personal biases and values in working with diverse groups†¦ (CSWE, 2008, p. 5) The NASW Code of Ethics (2008) points to the importance of recognizing religious and spiritual beliefs in order to practice in a holistic, client-centered manner. Section 1 . 05(c) of the Code of Ethics states: Social workers should obtain education about and seek to understand the nature of social diversity and oppression with respect to race, ethnicity, national origin, color, ex, sexual orientation, gender identity or expression, age, martial status, political belief, religion, immigration status and mental or physical disability. (NASW, 2008, p. 9) Competently addressing religious and spiritual beliefs is part of the holistic approach to working with the multi-dimensional person†bio, psycho, social, and spiritual. To ignore the value system of a client leaves the door open for social workers to taint the helping relationship with their own beliefs and values (Zellmer Anderson-Meger, 2011). Summary populations (Karger et al, 2007). History reveals that faith-based organizations have lways been a part of providing social welfare services. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 with the Charitable Choice clause and Bush’s Faith Based and Community Initiative simply increased the collaboration between faith-based organizations and the federal government. Conservative thinkers believe that churches can address welfare better than the government and the secular social service system (Cnaan ; Boddie, 2002). Conservatives vigorously attack the belief that government should finance and deliver social services to the population (Karger et al, 2007). Liberal ideology asserts that the government should play a central role in the provision of services†that government is responsible for ensuring that all people, regardless of status in life, receive needed services and supports that maximize their well-being and ability to participate in society (Colby, 2007). With an increased competency in the integration of social work practice with religion and spirituality, social work practitioners can turtner appreciate the etto religious organizations to address social problems. With the prevalence of faith- based organizations providing social services, it would be beneficial for social work ducation to increase the content on ethical social work practice within religious settings. The clashes between present-day humanistic and faith-based ideologies have spawned a lasting political debate over the correctness of federal government funding of faith-based social services. In the American pluralistic society, public funds should not be used to promote any particular religion. Therefore, the social work profession should take a leadership role in appreciating diversity, and ethically navigating social welfare and the faith-based initiative. How to cite Critique of Theoretical Framework, Papers

Cigarette smoking is the greatest preventable caus Essay Example For Students

Cigarette smoking is the greatest preventable caus Essay pope of disease and premature death in the United States. Secondhand smoke causes numerous lung cancer deaths annually. Measures have been taken in both workplaces and public places to limit exposure to secondhand smoke. The economic cost of smokers to society is phenomenal. It includes monetary costs, lost workdays and shortened work lives. Many states are establishing and maintaining comprehensive tobacco-control programs to reduce tobacco use. They provide education to our youth to prevent them from ever starting and smoking cessation programs for individuals that currently wish to stop smoking. Education and support are known ways to eventually prevent smoking in the future. Efforts to increase the public perception of the harmful effects of tobacco must utilize a comprehensive approach that affects policy development, education strategies and health care systems. Smoking is becoming more and more unfashionable as time goes on. There are many studies conducted showing that secondhand smoke is a health hazard to both the smoker and anyone that relies on the same air supply, not to mention the unpleasantness and discomfort it causes those that do not smoke. The Environmental Protection Agency reports that it is estimated that secondhand smoke that emerges from exhaling and burning cigarettes causes approximately 3,000 lung cancer deaths and 37,000 heart disease deaths in nonsmokers each year. (Nolo, 2002). According to a 1998 Gallop poll, 94% of Americans, including both smokers and nonsmokers, agree that companies should either ban or restrict smoking to properly ventilated areas. Another Gallop poll indicates that 95% of nonsmokers, and 69% of smokers, think Californias ban on smoking in almost all workplaces is positive. Some companies are now refusing to hire anyone who admits to smoking on a job application because of higher healthcare insurance, absenteeism, unemployment insurance and workers compensation insurance associated with these individuals. (Nolo, 2002). Those that do not smoke feel it is an infringement of what they consider to be a reasonable right not to have to breath other peoples cigarette smoke while at work. During the 1970s the dangers of secondhand smoke were beginning to amass and a movement for nonsmokers emerged. When it was proven that secondhand smoke was harmful to nonsmokers who inhale it passively, (Koop, C. Everett et al. 1996), the public became less tolerant of smoking in the workplace as well as public places. Exposure to tobacco smoke remains a health hazard that is completely preventable. Many state and local laws for clean indoor air reduce but do not eliminate nonsmokers exposure to secondhand smoke and smoking bans appear to be the most effective method of reducing exposure to secondhand smoke.Although there are no federal laws that directly control smoking in the workplace, (Nolo, 2002) many city and county ordinances ban smoking in the workplace. On the other hand, half of the states make it illegal to discriminate against those who smoke during non-working hours. However, many states protect employees from unwanted smoke on the job. Workplaces nationwide have gone smoke free to provide clean indoor air to protect employees. Tobacco smoke contains thousands of different chemicals (ASH, 2001) know to be carcinogens (cancer causing substances) that are released into the air as particles or gases. To date, workers have been awarded unemployment, disability and workers compensation benefits for illness and loss of work due to exposure to secondhand smoke. Twenty states and the District of Columbia limit smoking in private worksites and forty-one states and the District of Columbia have laws restricting smoking in state government buildings. In 1997, President Clinton signed an executive order requiring federal buildings to become smoke-free. Simply separating smokers and nonsmokers within the same airspace reduces, but does not eliminate, exposure of nonsmokers to secondhand smoke. California banned smoking in public places in 1998 and recently both the Delaware State Senate and House of Representatives passed Senate Bill 99, making Delaware one of very few states in the nation to enact a comprehensive and landmark smoking ban that includes restaurants and bars. Governor Ruth Ann Minner signed the bill into law on May 31, 2002 and the bill will become effective on November 27, 2002. .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 , .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .postImageUrl , .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .centered-text-area { min-height: 80px; position: relative; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 , .ucf6b7dc23fc3b4be3c6d5e923f91f8a3:hover , .ucf6b7dc23fc3b4be3c6d5e923f91f8a3:visited , .ucf6b7dc23fc3b4be3c6d5e923f91f8a3:active { border:0!important; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .clearfix:after { content: ""; display: table; clear: both; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 { display: block; transition: background-color 250ms; webkit-transition: background-color 250ms; width: 100%; opacity: 1; transition: opacity 250ms; webkit-transition: opacity 250ms; background-color: #95A5A6; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3:active , .ucf6b7dc23fc3b4be3c6d5e923f91f8a3:hover { opacity: 1; transition: opacity 250ms; webkit-transition: opacity 250ms; background-color: #2C3E50; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .centered-text-area { width: 100%; position: relative ; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .ctaText { border-bottom: 0 solid #fff; color: #2980B9; font-size: 16px; font-weight: bold; margin: 0; padding: 0; text-decoration: underline; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .postTitle { color: #FFFFFF; font-size: 16px; font-weight: 600; margin: 0; padding: 0; width: 100%; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .ctaButton { background-color: #7F8C8D!important; color: #2980B9; border: none; border-radius: 3px; box-shadow: none; font-size: 14px; font-weight: bold; line-height: 26px; moz-border-radius: 3px; text-align: center; text-decoration: none; text-shadow: none; width: 80px; min-height: 80px; background: url(https://artscolumbia.org/wp-content/plugins/intelly-related-posts/assets/images/simple-arrow.png)no-repeat; position: absolute; right: 0; top: 0; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3:hover .ctaButton { background-color: #34495E!important; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .centered-text { display: table; height: 80px; padding-left : 18px; top: 0; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3 .ucf6b7dc23fc3b4be3c6d5e923f91f8a3-content { display: table-cell; margin: 0; padding: 0; padding-right: 108px; position: relative; vertical-align: middle; width: 100%; } .ucf6b7dc23fc3b4be3c6d5e923f91f8a3:after { content: ""; display: block; clear: both; } READ: Human Evolution Essay (State of Delaware, 2002). When a bill of this nature becomes effective, it should eliminate the need of local governments to enact workplace-smoking restrictions within their jurisdictions. Many smokers agree that the restrictions on smoking are reasonable and even helpful as smokers try to quit or cut down on their smoking. Some have questioned if common courtesy would resolve the smoking problem and, if that were the case, we would not need any laws at all. However, people can be discourteous and inconsiderate and nonsmokers should not have to ask total strangers to stop smoking for exposure to a healthy environment. Once the Government passes such a law, a considerable amount of money and time is spent developing the regulations and determining the penalties, fines and actions against repeat offenders. It needs to be determined who will decide the amount of the fines, what the cost of the fines will actually be and who will be responsible for enforcing the law. There are many ways to educate individuals who currently smoke with regard to prevention and support. As a result of the health and economic consequences of cigarette smoking, states are establishing and maintaining comprehensive tobacco-control programs to reduce tobacco use among youth. There are seven recommendations for school health programs to prevent tobacco use and addiction. They include developing and enforcing a school policy on tobacco use, providing instruction regarding the short and long-term negative effects and social consequences of tobacco use, tobacco use prevention education in kindergarten through 12th grade, in which should be most intensive between junior high or middle school and then reinforced in the high school years, provide education to the teachers, involve parents and families in support of school-based tobacco prevention programs, support cessation efforts for students and teachers who use tobacco and assess the tobacco use prevention program regularly. Most of the United States public strongly agrees with policies that help prevent youth from starti ng in the first place. (MMWR. 1994). Cigarette smoking as well as smokeless tobacco use are always almost started and established during adolescence. The tobacco industry spends approximately $4 billion per year to promote and advertise cigarettes. Current research shows that universal tobacco promotion creates the perception that more people smoke than actually do, and it attempts to project that smoking is cool. Cigarettes smoking among our youth have not declined over the past decade and 28 percent of the nations high school seniors currently smoke cigarettes. Preventing cigarette smoking among our youth is the means in which to end the epidemic of tobacco use in the United States. Lee, P. (1994). According to the Centers for Disease Control (MMWR, 1994) 83% of current smokers wish they did not smoke and nearly one-third of all smokers quit for at least one day each year. 93% of smokers who try to quit start smoking again within one year. There are many medications to help those that want to quit smoking. They include oral medications, nicotine gum, a nicotine inhaler, nicotine nasal spray or a nicotine patch. Most can benefit from using a medication and all of these medications can as much as double ones chances of quitting and quitting for good. There are three treatment categories for smokers that clinicians should consider when determining a strategy. First, those who smoke cigarettes and are willing to quit should be treated using the 5 As (Ask, Advise, Assess, Assist, and Arrange). Secondly, those that smoke cigarettes but are unwilling to quit should be treated with the 5 Rs motivational intervention (Relevance, Risks, Rewards, Roadblocks, and Repetition). Thirdly, those who have recently quit using tobacco should be provided relapse prevention treatment. Studies have shown that the five keys for quitting include getting ready, getting support, learning new skills and behaviors, getting medication and using it properly and be prepared for relapse or difficult situations. (U. .uac4dbad0e795bd9ae7067d1ca1018b78 , .uac4dbad0e795bd9ae7067d1ca1018b78 .postImageUrl , .uac4dbad0e795bd9ae7067d1ca1018b78 .centered-text-area { min-height: 80px; position: relative; } .uac4dbad0e795bd9ae7067d1ca1018b78 , .uac4dbad0e795bd9ae7067d1ca1018b78:hover , .uac4dbad0e795bd9ae7067d1ca1018b78:visited , .uac4dbad0e795bd9ae7067d1ca1018b78:active { border:0!important; } .uac4dbad0e795bd9ae7067d1ca1018b78 .clearfix:after { content: ""; display: table; clear: both; } .uac4dbad0e795bd9ae7067d1ca1018b78 { display: block; transition: background-color 250ms; webkit-transition: background-color 250ms; width: 100%; opacity: 1; transition: opacity 250ms; webkit-transition: opacity 250ms; background-color: #95A5A6; } .uac4dbad0e795bd9ae7067d1ca1018b78:active , .uac4dbad0e795bd9ae7067d1ca1018b78:hover { opacity: 1; transition: opacity 250ms; webkit-transition: opacity 250ms; background-color: #2C3E50; } .uac4dbad0e795bd9ae7067d1ca1018b78 .centered-text-area { width: 100%; position: relative ; } .uac4dbad0e795bd9ae7067d1ca1018b78 .ctaText { border-bottom: 0 solid #fff; color: #2980B9; font-size: 16px; font-weight: bold; margin: 0; padding: 0; text-decoration: underline; } .uac4dbad0e795bd9ae7067d1ca1018b78 .postTitle { color: #FFFFFF; font-size: 16px; font-weight: 600; margin: 0; padding: 0; width: 100%; } .uac4dbad0e795bd9ae7067d1ca1018b78 .ctaButton { background-color: #7F8C8D!important; color: #2980B9; border: none; border-radius: 3px; box-shadow: none; font-size: 14px; font-weight: bold; line-height: 26px; moz-border-radius: 3px; text-align: center; text-decoration: none; text-shadow: none; width: 80px; min-height: 80px; background: url(https://artscolumbia.org/wp-content/plugins/intelly-related-posts/assets/images/simple-arrow.png)no-repeat; position: absolute; right: 0; top: 0; } .uac4dbad0e795bd9ae7067d1ca1018b78:hover .ctaButton { background-color: #34495E!important; } .uac4dbad0e795bd9ae7067d1ca1018b78 .centered-text { display: table; height: 80px; padding-left : 18px; top: 0; } .uac4dbad0e795bd9ae7067d1ca1018b78 .uac4dbad0e795bd9ae7067d1ca1018b78-content { display: table-cell; margin: 0; padding: 0; padding-right: 108px; position: relative; vertical-align: middle; width: 100%; } .uac4dbad0e795bd9ae7067d1ca1018b78:after { content: ""; display: block; clear: both; } READ: Diary Of Anne Frank EssayS. Public Health Service, 2000). The costs to both society and individuals that smoke are phenomenal. Approximately 60% of the direct health cares costs in the United States are used to treat tobacco