Fundamentals Of Law: Criminological Theories Essay

Question:

Discuss about the Fundamentals of Law for Criminological Theories.

Answer:

Facts of the Case

In this case five explorers had got trapped inside the cave. They had been trapped due to a land slide and there was no way left in which they could escape the cave. They tried their best but were not able to do so. There was tremendous effort form the rescuers to rescue them out of the cave but the effort was not successful. Ten men had already died in order to rescue them from the cave. The explorers had no access to food or water and they had no idea till when they are going to be trapped inside. The rescue party was trying their best to rescue them but their attempts were getting failed. On the 20th day radio contact was been able to be established between them and the rescuers. Through the radio connection the trapped persons were notified that it would take another ten days before they can be rescued. They had a chat with the medical expert through the idea where they consulted about their survival chances without nutrients. They had been notified by the medical expert that it is unlikely that they would be able to survive another ten days without food and water in the cave. One of the trapped cavers Mr. Whetmore asked the medical experts on behalf of the other cavers that would they be able to survive if they consumed the flesh of one of the trapped cavers. The medical expert although reluctantly but confirmed that if they did so than they will have the chance of survival. Mr. Wethmore than inquired the fellow cavers that they should choose the person to be killed and eaten through drawing lots or not. No one from the rescue team was able to answer the question or did rather not want to answer the question and in addition the radio contact was subsequently lost. When the cave was cleared it was found that Mr. Wethmore had been killed and consumed. The other four people claimed that they had done so through the dice provided by the deceased and he had agreed that the dice was thrown in a just way. The four men were charged with murder of Mr. Wethmore. There is a mandatory penalty of death in case of murder in Newgarth.

The Decision and Relevance of Legal Theory

The first judge in this case Chief Justice Truepenny held that the four convicts are guilty of murder however the he recommended clemency. The opinion of the judge was to an expository to a great extent and had been used to review the facts related to the case. According to the judge the legal provisions were clear and the defendants had no defenses to rely on thus the provisions have to be imposed and applied by the court. It was added by the first judge in this case that the circumstances which lead to the murder in his view were such that they provide a need for clemency. However it was added by the chief justice that the decision related to mercy is in the hands of the executive and not the judiciary. In addition it was provided by the chief justice that the other judges should add their names to the appeal claiming mercy for the convicts. According to the chief justice such decision would not only keep the integrity of the statues but also allow the justice to be served without disregarding law.

The judge in this case relied on both the natural law theory and the legal obedience theory to come to a decision. According to the natural law theory the rational behavior of human beings should be used to derive what is evil and what is good[1]. Historically the theory refers to the use of human reasons in order to make binding rules with respect to moral behavior[2]. Thus by analyzing human behavior the judge deduced that the actions of the convicts should be subjected to mercy. However the judge prioritized the legal obedience theory according to which a statue which is not ambiguous must be imposed without any alternation by the courts and it is not the look out of the court that whether the statue is justified or not. Thus the judge only recommended clemency by through the legal obedience theory affirmed conviction


The second judge in this case Justice Foster ruled that the accused were not guilty and set aside the conviction. According to the judge as the defendants were in a “State of nature” the basic law of Newgarth was not applicable on them. In addition it had been provided by the judge that according to natural law it was not wrong for the convicts to sacrifice the life of one person in order to save the life of four others. The judge suggested that the court must take a purposive approach towards the statue as the law of Newgarth was not applicable. There have been several occasions where the courts have found exception to statues through implications such as in the case of self defense. The judge also ruled that the main intention and objective of criminal law is deterrence and in this case it would not be served by affirming conviction.

The judge in this case relied on the natural law theory along with the legal anthropology to come to a decision. Natural law theory had been discussed above according to which the circumstances have to be analyzed in order to come to decision[3]. The judge also considered the anthropology theory or the cross culture theory according to which laws in different cultures are used to come to a decision[4]. There are many cultures where cannibalism is legal due to the scarcity of food and the rule of survival of the fittest prevails[5].

The judge Justice Tatting was the only judge who was not able to come to a decision. The judge had criticized the approach taken by Justice Foster. The judge in this case provided that the freedom of contract must be prioritized over right to life according to the state of nature cannot be taken as a logical argument. The judge was stuck between the feeling of sympathy and disgust of the monstrous act committed. The purposive approach was also criticized by the judge as it has various purposes which include rehabilitation and retribution. The judge also cited the case of Commonwealth v Valjean in which it was not justified to hold starvation as a valid cause for theft. However it was provided by the judge that the considerations of the defendants are counterbalancing that of the prosecution and it is not possible for him to come to a just decision.

The judge in this case also relied on the legal obedience theory however he was not able to come to to a decision as it would contradict the theory of justice[6]. He was not able to determine whether the balance of justice was in favor of the defendants or the prosecution.


The fourth judge Justice Keen started his decision by criticizing and opposing the executive clemency as provided by the chief justice. He affirmed the conviction of the defendants. The justice also rejected the morality behind the actions of the defendants which was used by the courts to come to the decision. The justice ruled that the only question which the court should consider in this case is the application of the legislation of Newgarth and the determination of the fact that the life of the deceased was taken willfully by the defendants or not. He ruled that the other judges have failed to separate the moral and the legal aspects of the case. He in his personal opinion held that the defendants should not be subjected to death but ruled that the role of the court is only to interpret and apply the law.

The judge in this case applied the legal positivism and the legal obedience theory to come to a decision. According to the theories the court must not look into the fact that a legislation is justified or not and not to doubt the ability of the legislature to enact laws the Legal positivism theory further provides that the law made by the legislatures must be imposed strictly[7]. It is not necessary that law and morals will always have a connection and thus analysis of issue should not be based on moral or social principles. Legal issues must only be addressed by referring to rules which are predetermined without any social consideration. The concept of legal positivism is totally opposite to that of natural law and established no connection between law and morals. Thus the justice confirmed the conviction of the defendants.

The fifth and final judge in this case was Justice Handy. He had set aside the conviction of the defendants in this case. He had the opinion that the court must give relevance to public demand and view when deciding a point of law. He ruled that the decision must be based on common sense rather than abstract theories of law. He held criticizing his colleagues that the case only requires practical wisdom and not curtains of law in order to come to a rational decision. He held that 90% of the public wants the defendants to be released or be subjected to a minor punishment and in order to maintain public confidence in law such decision has to be taken. The judge was also ready to accept the purposive approach as provided by Justice Foster.

The judge in this case used the social theory to address the issue. According to the social theory the objective of law is to protect the citizens against injustice and to maintain the confidence of the public in the legal system. The social theory seeks to address legal issue with common sense and not predetermined law[8]. The theory although it sounds practical and clear can cause immense ambiguity with respect to the legal system.

Reaching a Decision

The main issue which arises in this case with respect to making the decision is the question related to the relevance of moral right and legal obligations. The theories such as legal positivism and natural law used by the judges to address the issue have their own relevance but are contradictory to each other. The social theory has also been applied in this case which provides an outcome contradictory to the theory of legal positivism. Law had existed in society since ancient times with its main objective of providing justice to the aggrieved. The fundamental purpose of criminal law is to ensure that the criminal activity is not repeated again through punishment of the guilty. There are two significant elements which constitute a criminal activity firstly the intention of causing harm and secondly the physical act causing the harm. In this case both intention and action can be said to be present. However there have been many cases in which a criminal punishment has been exempted based on the theory of self defense. Law should never be used to satisfy the demands of a particular group of society or the society as a whole. According to the rule of there is nothing which is or which can be above law and thus society demands cannot be put above the provisions of law[9]. Therefore the social theory cannot be applied in this case to a decision. The difficult task arises when one among the theories of legal positivism and natural law has to be chosen to come to a decision in this case. Comparing the two theories none can be identified as a clear winner as the principles of law are not only to punish the wrongdoer but also to promote justice and equity in the society.

Therefore in this case referring to the decision of the chief justice which made an attempt to give relevance to both legal positivism and natural law it can be said that the defendants should be affirmed guilty but clemency in the matter must also be observed by the executives.

Bibliography

Akers, Ronald L. Criminological theories: Introduction and evaluation. Routledge, 2013.

Armstrong, David Malet. What is a Law of Nature?. Cambridge University Press, 2016.

Campbell, Tom D., ed. Legal positivism. Routledge, 2016.

Leiter, Brian. "Marx, law, ideology, legal positivism." Virginia Law Review (2015): 1179-1196.

MacCormick, Neil, and Ota Weinberger. An institutional theory of law: new approaches to legal positivism. Vol. 3. Springer Science & Business Media, 2013.

O'Connell, Mary Ellen, and Caleb M. Day. "Sources in Natural Law Theories: Natural Law as Source of Extra-Positive Norms." (2016).

Roberts, Simon. Order and dispute: an introduction to legal anthropology. Quid Pro Books, 2013.

Stanlis, Peter James. Edmund Burke and the natural law. Transaction Publishers, 2015.

Weidong, Chen. "Legality, Democracy and Restriction: Three Key-Words the Judicial Reform Should Focus on." Law Science Magazine 10 (2014): 001.

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