Law. Discussion of views - Essay Example

? ESSAY AND PROBLEM QUESTION 28 February ESSAY AND PROBLEM QUESTION Essay: Discussion of views An opinion has been presented to a newspaper with the view that there is no difference between morality and the law. The same article claims that there is no significant difference between civil law and criminal law. Difference between law and morality Laws are sets of rules that are adopted by societies for regulating behaviour and conducts of its members. The society can be an institution or a territorial set up such as nations. Morality is on the other hand defined by ethical values that are held by a society. It is based on cultural practices of set ups such as communities and institutions. Principles of law and morality therefore interact with some similarities and differences. One of the differences between law and morality is in their sources. Gardner explains that while morality originates from a collective responsibility of a society, law is a creation of an individual or a group of specific people. He argues that law is made on purpose and is therefore objective driven. As a result, law is viewed as a creation of necessity and predetermined intentions. This distinguishes law from morality that emanates from cultural practices that have been held and approved as acceptable by a given society. It can therefore be identified that while law is a consequence of circumstances that establishes the aims of formulating the laws, morality is based on a person’s conscience within his immediate society (Gardner, n.d., 1-3). A boundary between law and morality is also drawn with respect to the content of the two. If the two were similar, then they would be regulating matters in the same approach. This is however not the case because the two are sometimes in conflict. Some legal issues are not moral. At the same time, there exist moral issues that are prohibited by law. There are for instance laws that allows for gay marriages and slavery. In the context of morality, gay marriage and slavery are unacceptable to human sanctity aspects. Similarly, the approach to implementation of law and morality are different. While law relies on the punitive consequences for disobedience for its enforcement, morality is adopted as a culture by its subjects and does not attract a punishment for disobedience (Wku, 2001, p. 1). Cane agrees with these opinions that morality is a concept that exist within a society and is to be identified with, while law is created by people and must be obeyed. An act can therefore be immoral and yet legal (Cane, 2002, p. 12, 13). Difference between criminal and civil law There are also a number of differences between criminal law and civil law. The differences range from their scope to procedures that are involved in litigation. While criminal law defines offenses against a society as a whole, civil law defines wrongs committed by an individual against another individual. A criminal wrong has a wider scope and has a potential of affecting the public at large. An example of a criminal wrong is public nuisance such as emission of a poisonous air pollutant in to the atmosphere. This has a potential of affecting every individual who is within the pollutant’s vicinity. A wrong under civil law on the other hand affect a specific person. Private nuisance such as throwing objects into a person’s piece of land causes damage to the specific landowner or specific peoples who have right over ownership or usage of the infringed piece of land. No individual person can therefore claim compensation in a criminal case (Overbeck and Belmas, 2011, p. 19; Elias, 2009, p. 51-54). Another difference between criminal law and civil law is with respect to parties to the subject case. While parties in a civil case are the plaintiff and the defendant, parties to a criminal case are the suspect or suspects and the state, represented by a prosecutor. The prosecutor, who may initiate the case or take it over from a private individual, presents a criminal case in court. Private individuals, the plaintiff, on the other hand present civil cases. Consequences of criminal law are imprisonment and fine while breach of civil law attracts compensation in the form of damages and other measures such as injunction and specific performance (Overbeck and Belmas, 2011, p. 19; Elias, 2009, p. 51-54). Objective of law also forms the difference between criminal law and civil law. While criminal law aims at protecting members of the public, civil law ensures a peaceful relationship among people living in a society. Civil law is therefore geared towards conflict resolution and compensation for losses towards reconciliation. Criminal law, on the other hand, aims at ensuring adherence to laws and regulations. Wrongs committed within the two branches of law also involve different procedures and should therefore be dealt with by different specialized courts (Gaines and Miller, 2011, p. 91). Problem question: Harry’s case Facts Harry was driving to his friend’s house while looking at his street map. He failed to see a packed vehicle and crushed into it. Further, Harry contracts his accountant for services and fails to pay her, as he does not have money. Harry was also involved in an encounter with a neighbour who plays drums loudly at night to an extent that Harry could not sleep. Legal principle The facts of the case can be explored from three scenarios. The first instance involves crushing into another person’s car. The scenario falls within the scope of law of tort, under the principle of negligence, which is defined as a breach of a duty of care owed by a person to another. The breach must lead to legal liability. For an act to be considered as a negligent tort, it must satisfy a number of elements. There must have been a duty of care owed by one party to another. The duty of care must have been breached, leading to a legal loss. Finally, the loss suffered must be able to attract remedies. Further, the measure of the duty of care is determined by circumstances to a case and the rationale in the circumstance. As a driver, Harry owes a duty of care to other road users and he ought to be careful not to cause them any harm. This duty of care was breached as Harry was reading his map while driving leading to the accident (Miller and Gentz, 2009, p. 95). Negligence also constitutes criminal liability. Determination of criminal liability in negligence is based on the potential threat that the defendant’s action could impose on the other party. Reckless driving by Harry that could have inflicted injury on the car owner induces criminal liability (Pollock, 2009, p. 50). Harry is also liable for breach of contract for failing to pay his accountant. This is because accountancy involves a contract of service in which consideration is a condition. Failure to pay the dues constitutes a civil liability (Statsky, 2011, p. 321). Actions of the neighbour that causes noise at night on the other hand defines nuisance. This is because the noise is caused late in the night and interferes with Harry’s sleep. The nuisance can either be considered as private, to constitute a legal claim by Harry or as public nuisance to institute a criminal liability (Dunham, 2011, p. 448, 449). Claims that Harry might make Harry can possibly make a claim against nuisance from his neighbour’s compound. The most likely claim would be an injunction order to stop the neighbour from playing the drums at night. The other liabilities are against Harry (Statsky, 2011, p. 332). Works cited Cane Peter. (2002). Responsibility in law and morality. Oxford, UK: Hart Publishing Dunham, Beth. (2011). Introduction to law. New York, NY: Cengage Learning. Elias, Stephen. (2009). Legal Research: How to Find & Understand the Law. California, CA: Nolo Gaines, Larry, and Miller, Roger. (2011). Criminal Justice in Action: The Core. California, CA: Cengage Learning Gardner, John. (n.d.). ‘Law and morality’. Users. Available from: http://users.ox.ac.uk/~lawf0081/pdfs/lawmoralityedited.pdf. [Accessed on 27 February 2012.] Miller, Roger, and Gentz, Gaylord. (2009). Fundamentals of Business Law: Excerpted Cases. Mason, OH: Cengage Learning. Overbeck, Wayne, and Belmas, Genelle. (2011). Major Principles of Media Law. Boston, MA: Cengage Learning Pollock, Joycelyn. (2009). Criminal Law. New York, NY: Elsevier Statsky, William. (2011). Essentials of torts. New York, NY: Cengage Learning. Wku. (2001). ‘Basic observations on law and morality’. Available from: http://www.wku.edu/~jan.garrett/320/320lawmo.htm. [Accessed on 27 February 2012.] Read More