1 Introduction
The general defence of necessity has long been disputed. The South African and English legal systems are intrinsically opposite, and neither seem to escape controversy. These systems differ greatly on the legal subject of defence of necessity in the context of killing an innocent third party. The legal aspects of this defence, as well as accompanying problems which may arise, will be briefly discussed in terms of the South African as well as the English law. Utilitarianism and Kantianism will be used to analyse specific case law that made an enormous contribution to the legal dispute regarding necessity.
2 Necessity
Necessity can be described as the voluntary conscious decision to break the law in order for a lesser evil to prevail over some greater evil. The legal dispute arises where this defence requires absolute proportionality in the sense that the act which was committed should by all means be a lesser crime than the inevitable danger that would have followed. Even this requirement of the defence of necessity seems reasonably simple, until one reaches the situation where one life gets weighed up against another life.
2 1 South African Law
South Africa has a Constitution which sets out the responsibilities of the people of South Africa, as well as the state, and the rules to which every single legislation in South Africa has to succumb. Up until 1972, when judge Rumpff AR made the decision that necessity can be a ground of justification for murder in specific circumstances, South African law shared the views of the English law – that necessity is not a ground of justification to the unlawfulness of a crime. As of the S v Goliath case, the South African view in this particular matter has been es...
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... minimalistic margin of error. All courts should already apply the previously mentioned principles to their cases. The South African law development is somewhat more of a challenge. Killing an innocent person is morally wrong, but the state cannot always adhere to the private interests in morality of the people.
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Criminal law attempts to balance the rights of individuals to freedom from interference with person or property, and society’s need for order. Procedural matters, the rights of citizens and powers of the state, specific offences and defences, and punishment and compensation are some of the ways society and the criminal justice system interact.
Mamo v Surace (“Mamo”) examines fault and finality, in the context of an unavoidable accident. Definitional discussion emerges within the idea of “fault”, with the outcomes ultimately furthering the legal avenues of victims of blameless accidents, enabled by the separation of non-tortious negligence and “fault”. Notably, the dismissal of arguments raised at appeal furthers the notion that circumstantially, injustice must be endured for the sake of finality, to avoid greater an injustice inflicted upon the opposing counsel .
The ‘Trolley Car Problem’ has sparked heated debates amongst numerous philosophical and jurisprudential minds for centuries. The ‘Trolley Car’ debate challenges one’s pre-conceived conceptions about morals, ethics and the intertwined relationship between law and morality. Many jurisprudential thinkers have thoroughly engaged with this debate and have consequentially put forward various ideologies in an attempt to answer the aforementioned problem. The purpose of this paper is to substantiate why the act of saving the young, innocent girl and resultantly killing the five prisoners is morally permissible. In justifying this choice, this paper will, first, broadly delve into the doctrine of utilitarianism, and more specifically focus on a branch
The contradictory outcomes of cases presenting very similar facts to the court leads some jurists to cry out for reform and to denounce the defects in the present common law rules. Some, are supportive of the implementation of a statutory obligation to make reparation for wrongfully caused mental
Gary Leon Ridgway may not be a household name, but the infamous Green River Killer is one of the most accomplished serial murderers in U.S. history. In 2003, Ridgway confessed 48 accounts of aggravated first degree murder (more confirmed murders than any other American serial killer) during a two-and-a-half-year period in the early 1980s near Seattle, although it is believed he slaughtered even more. The majority of his victims were runaway teenage girls and hookers whom he picked up on the interstate and strangled to death. But Ridgway was spared the death penalty as part of a plea bargain three years ago, in exchange for his assistance in leading investigators to his victim's remains and revealing other information to help "bring closure" to the grieving families ("Green River Killer Avoids Death in Plea Deal").
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Guernsey, J. B. (2010). Death penalty: fair solution or moral failure. Minneapolis, MN: Lerner Publishing Group, Inc. Retrieved February 8, 2011 from http://books.google.com/books?id=38slHSsFFrgC&pg=PA125&dq=death+penalty+in+other+countries&hl=en&ei=F6dQTZHLBsm_tgfD7rHBCQ&sa=X&oi=book_result&ct=result&resnum=5&ved=0CD4Q6AEwBDgU#v=onepage&q=death%20penalty%20in%20other%20countries&f=false
In the United States, many crimes are considered to be punishable by a life sentence or a sentence of a few years. However, many crimes have earned people capital punishment, also known as the death penalty. The first known death penalty was acknowledge by a legal document known as the Code of Hummarubi. In this document, written in the 1700s, it is mentioned that twenty-five crimes were punished by death. The crimes included being unfaithful to one's partner and even helping slaves escape (Guernsey, 2009). By 1846, the state of Michigan became one of the first US states to abolish the death penalty for all committed crimes. Michigan now replaces the death penalty with life imprisonment (Bohm, 2007). However, then the inventor Thomas Edison conducted his experiment on the use of electrocution on animals. In 1890, New York State became the first state to practice execution by electrocution on an electric chair on William Kemmler. This method then became a preferred method of execution (Guernsey, 2009). By 1924, the first lethal gas in American history was carried out in Carson City, Nev. It was known as a less severe execution compared to hanging, firing squad, or electrocution (The history channel, 2009). Many states, including Washington State, Connecticut, and recently Maryland have suspended the idea of the death penalty. Even though many perpetrators have committed a criminal offence and have affected many families, and the families might want the worst for that person, no one deserves to have to be put on death row because it is inhumane, and it is not teaching the future generations of what Americans value. The death penalty should not be practices on any criminal because it is inhumane, it is expensive, and many criminals m...
Winslow, R. W., & Zhang, S. (2008). Contemporary Theories of Crime. Criminology: a global perspective (). Upper Saddle River, N.J.: Pearson/Prentice Hall.
The mother-son case illustrates that there are more factors in play than just the two that Thomson presents in her thesis. Thomson’s conditions by themselves cannot explain every situation. The relationship between the people involved can also affect whether a decision is morally permissible or not. If that relationship entails that one person is emotionally bound and ethically responsible for the security and well-being of the other, the first cannot knowingly contribute to the death of the second. Thomson’s thesis must be modified to include this condition as well.
ABSTRACT: Both utilitarians and the deontologists are of the opinion that punishment is justifiable, but according to the utilitarian moral thinkers, punishment can be justified solely by its consequences, while the deontologists believe that punishment is justifiable purely on retributive ground. D. D. Raphael is found to reconcile both views. According to him, a punishment is justified when it is both useful and deserved. Maclagan, on the other hand, denies it to be justifiable in the sense that it is not right to punish an offender. I claim that punishment is not justifiable but not in the sense in which it is claimed by Maclagan. The aim of this paper is to prove the absurdity of the enquiry as to whether punishment can be justified. Difference results from differing interpretations of the term 'justification.' In its traditional meaning, justification can hardly be distinguished from evaluation. In this sense, to justify an act is to say that it is good or right. I differ from the traditional use and insist that no act or conduct can be justified. Infliction of punishment is a human conduct and as such it is absurd to ask for its justification. I hold the view that to justify is to give reason, and it is only a statement or an assertion behind which we can put forth reason. Infliction of pain is an act behind which the agent may have purpose or intention but not reason. So, it is not punishment, but rather statements concerning punishment that we can justify.
Act-utilitarianism is a theory suggesting that actions are right if their utility or product is at least as great as anything else that could be done in the situation or circumstance. Despite Mill's conviction that act-utilitarianism is an acceptable and satisfying moral theory there are recognized problems. The main objection to act-utilitarianism is that it seems to be too permissive, capable of justifying any crime, and even making it morally obligatory to do so. This theory gives rise to the i...
The death penalty has been an inalienable part of human society and its legal system for centuries, regarded as a necessary deterrent to dangerous crimes and a way to liberate the community from dangerous criminals. However, later on this type of punishment came to be regarded as a crime against humanistic ideals by many, and its validity in the legal system has been questioned. Until now, the debate rages on. This resulted in a wide discrepancy of laws on this issue. Some nations, including China, the US, Iran, Belarus, and others preserve the death penalty as an option, while others like Canada, Australia, New Zealand, and almost all European nations have abolished capital punishment. Still others keep the norm in their legislation.
Mens rea known as the “mental element” of an offence has long been regarded as a crucial factor in criminal law, aiming to ensure that only those who are blameworthy are punished for crimes thus inputting the role of fairness into the criminal law system. H.L.A Hart agreed with this fairness rationale arguing that it would be wrong to convict and punish anyone who had not been given ‘a fair opportunity’ to exercise the capacity for ‘doing what the law requires and abstaining from what it forbids.’ “The general rule is that no crime can be committed unless there is mens rea.” But this is departed from when creating strict liability offences.
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.