The relationship between justice or rights - Essay Example

?According to the Declaration of Independence of the United s (1776), human beings are born with inalienable rights and these should not be violated. On the other hand, it can be noted that the law of the land in different countries is designed to protect the rights of the citizens in different ways. It can be noted that there is a correlation between the concepts of rights and law. As such, this paper seeks to critically analyse the relationship between rights and law. It starts by defining these two concepts in order to get a full understanding of their meanings. The main part of the paper discusses the theoretical framework underpinning these two concepts. Human rights are literally the rights that one has simply because he or she is human. Donnely (1998, p. 3) posits to the effect that “human rights, because they rest on nothing more than being human being, are universal, equal and inalienable. This means that everyone is entitled to human rights and is empowered by them regardless of creed or belief. Theoretically, Joel Feinberg: “To have a right is to have a claim to something and against someone, the recognition of which is called for by legal rules or, in the case of moral rights, by the principles of an enlightened conscience,” (1980 p. 159-160). Human beings should be treated as equal and their rights should not be violated by others. As going to be discussed in detail below, there are various institutions that are mainly concerned with protecting the rights of people in different countries. Different rights of people are also protected by the law in different countries and this is the reason why it can be said that there is a close relationship between the concepts of rights and law. In order to promote social cohesion, there is need to apply certain rules and regulations that are supposed to guide the conduct of human beings. On the other hand, the word law suggests the idea of rules which affect the lives and activities of people in different societies (Marsh & Soulsby, 1994). When the rule is enforced by a person with power in the community, then it becomes a law. Basically, it can be noted that law is shaped by various institutions but it can be noted that during the contemporary period, it mainly derives from the constitution. Thus, in different countries, respective governments lay down binding regulations that form the law of the land as enshrined in the constitution (Muller et al, 2007). As such different cases are reported to different courts and these have the power to settle issues that may exist among different people in the society. The law also stipulates that all the accused persons have the right to fair trial and they are innocent until they are proven guilty by the court. In most cases, the law is specifically meant to regulate the behaviour of different people in their societies. From the above explanations, it can be seen that there is a close relationship between the concepts of rights and law. In as far as the concept of rights is concerned, John Locke’s Second Treatise Government 1776 posits to the effect that individuals have natural rights to their lives, liberties and estates (Donnelly, 1998). In the absence of government, these rights are of little value. Therefore, the government has a responsibility to ensure that the rights of the people are protected. The existence of the government and people’s rights are complimentary as they are designed to serve the interests of the people. The government is an institution that has the power to enact laws that guide the behaviour of the people in their respective countries in order to ensure that there is peace and harmony among the people. In essence, the existence of the government is mainly concerned with protection of people’s rights so that they are not violated. It can be noted that there is a close link between the concepts of law and rights. According to Locke’s philosophy of inalienable rights among the people, the government is based on social contract between the rulers and the ruled (Tackach, 2001). This means that rules come into existence as a result of different factors and it can be noted that there is an agreement between the stakeholders involved. Laws are essential if the community is to enjoy peace and harmony. Laws are designed to encourage people to co-exist in a peaceful manner in a given society. The laws are also meant to shape and control the behaviour of the people in a particular location so that it conforms to the expected standards. The law also makes it possible to instil discipline among the people so that they can be in a position to respect the interests and rights of other people which promote peace and tranquillity in a society. According to the Declaration des droits de l'homme et du citoyen, France (1793), rights are divided into two categories namely; ‘rights of man’ which are mainly concerned with human rights while ‘rights of citizen’ are mainly concerned with legal rights. However, all these rights are protected by the law and any violation against them can be prosecuted. In any given community, the rules are developed in order to control the relationships between the members. In order to maintain social order which can promote peace and tranquillity in a given community, there is need for enactment of the laws that can provide a framework upon which people can measure their behaviour. These laws are enforced by recognised agents such as the powerful people with authority over others in a social set up involving a group of people sharing the same identity. However, during the contemporary period, it can be noted that governments in different countries have the responsibility of creating the laws that are specifically meant to protect the rights of citizens in different contexts. The concept of human rights is an international issue and different states are expected to formulate laws that are meant to protect these rights. Thus, on 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of the Human Rights (UDHR) which emphasises the point that all human beings are born with equal and inalienable rights and fundamental freedoms. Recognition of these rights is a foundation of justice, peace and freedom in the world. Historically, some barbaric acts such as slavery used to exist and these undermined the rights of different individuals who were victims of such acts. This is the reason why the UN charter on human rights suggests that all the fundamental principles of human rights should be upheld and these should be protected by the rule of law. The UDHR therefore is regarded as a common standard of achievement for all peoples and all nations and states should have laws in their territories or jurisdictions that are designed to protect these fundamental human rights. Historically, laws from different countries evolved from Dutch and English legal systems (Kleyn & Viljoen, 2002). However, many countries prescribe to the tenets of English legal system where statute law is enacted through legislation where acts of parliament are passed as law of the land. Thus, it is the role of every citizen to fulfil certain duties towards the state and the interests of the members of the society. The state on the other hand has a duty to assign certain norms that shape the behaviour of all the members of the society and anyone who breaks these rules would have committed an offence or a crime which can be a threat to the society as a whole (Kleyn & Viljoen, 2002). In such a scenario, it becomes the role of the courts to ensure that justice prevails and the offender has been brought to book for transgressing against the laws of the land. Basically, there are two different types of law namely criminal and civil law. Though closely connected, their objectives are different given that criminal law is concerned with punishing the offender by the state whereas civil law is concerned with resolving disputes and giving remedies to the people wronged (Marsh & Soulsby, 1994). This section of the paper looks at the tenets of criminal law and how they are connected to the concept of rights. According to information obtained from the following website, (http://www.hg.org/crime.html, ND), “criminal law which is often called penal law, involves prosecution by the government of a person for an act that has been classified as a crime.” On the other hand, a crime is further defined as, “any act or (commission of an act) in violation of a public law forbidding it.” this is part of public law and it stipulates that all citizens under the state’s jurisdiction have a duty to abide by the laws which are meant to protect the interests of the society as a whole and it is the duty of the state to punish transgressors against the rules prescribed (Kleyn & Viljoen, 2002). Any person who commits a crime as defined by the meaning of criminal law is liable for prosecution in a criminal court and it is the state’s case to establish the existence of a crime which is then followed by a punishment if the defendant is found guilty in the case. The degree of punishment is determined by the magnitude of the crime committed by the defendant and this judgement is specifically meant to deter the other would be offenders not to commit the same crime. The other aim of this particular law is to rehabilitate and reform the offender so that he or she can be reintegrated into the society again. This is considered as an effective tool to deal with issues related to combating acts that are deemed wrongful as prescribed by the law. In criminal case proceedings, the state has a role to protect the rights of the citizens such that they are not transgressed against by other people. This is also meant to ensure that peace among the communities is preserved where an element of fear is removed among the people. This law is also designed in such a way that is meant to make it easier for the state to control the behaviour of the citizens so that they conform to the standard expectations as prescribed by the state. There are mainly four different groups of crime that are often considered criminal and these include the following: crime against another person, crime against the community norms, against the interests of the state and other people’s property (Kleyn & Viljoen 2002).Generally speaking, Anderson, Dodd & Roos (2003) concur with this assertion when they suggest that common cases constituting criminal offences under common law mainly included the following aspects: murder, robbery, shoplifting, rape, assault, arson and bribery among others. However, it must be noted that the most serious crime against another person killing or any action that threatens human life. Killing another human being can be regarded as either murder or culpable homicide where the state takes a leading role in prosecuting the offender with the aim of effecting a punishment once the offender has been convicted of a criminal offence. The law of the land as enshrined in the constitution clearly states that the judiciary particularly the courts have a responsibility to preside over such cases with the aim of ensuring that justice prevails among the members of a particular state (Muller et al, 2007). It can be noted that criminal law was designed with the aim of protecting fundamental rights of human beings as enshrined in the Universal Declaration of Human Rights which have to be upheld by all member states to this important charter. For instance, Article 3 of the UDHR posits to the effect that everyone has the right to life, liberty, and security of a person. On the other hand, Article 5 also suggests that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. As such, criminal law has been designed with the aim of ensuring that such cases do not exist. For instance, battery or assault with intent to cause grievous bodily harm is regarded as a crime given that it is intended to cause pain on another individual. Thus, a good example to this assertion can be drawn from the case of Midgett v. State Supreme Court of Arkansas, 1987 1. In this case, the defendant severely assaulted his son with blows when he was drunk and this resulted in loss of life. Indeed, he was convicted of murder given that the law stipulates that no one has the right to cause grievous bodily harm or kill another person as these acts constitute a criminal offence which is punishable by a prison sentence once the accused has been convicted of such crime. In this case, it can be noted that there is a close relationship between the concept of rights and law. It is clearly stated that every person has a right to life and liberty and these rights should not be violated in any way. The law clearly states that any person who is convicted guilty of this particular offence is given a custodial sentence as punishment. In this particular case, death resulting in action of another person that is intentional is considered as a criminal offence by the state and this is punishable. However, certain conditions have to prevail in order for the state to prove that someone is liable for a criminal offence. Thus, Kleyn & Viljoen (2002), suggest that all three of the following elements have to be present in order to convict someone that a criminal offence has been committed: action, it is unlawful and the accused person is at fault. These elements have to be established in order for the state to find a case against the defendant. In as far as the aspect of criminal law is concerned, it can also be noted that the accused persons also have rights and they are legally protected by the law. 1. Midgett v. State Supreme Court of Arkansas, 1987 For instance, Article 11 of the UDHR state that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial.The accused at this juncture has all the guarantees that are necessary for his defence and he has the right to be represented by a legal advisor in the proceedings of such case. It is presumed that everyone accused of committing a certain offence is innocent until proved guilty by the court of law which is the arbiter in all cases that are deemed to be in breach of the law. It may be scandalous by other people to predetermine the outcome of a certain case that is before the court of law. This is prohibited by the law since everyone has a right to fair representation and judgement in a legal court. In some cases, a genuine mistake on behalf of the other party can lead to death of the other person. However, according to law, this is still treated as an offence given that there is no one with the right to take the life of the other person. This case may not be treated as murder but as culpable homicide which attracts a lesser extent. In some cases, the circumstances behind the death of another person are beyond the control of the defendant but they still constitute a crime. The case of Venkatesan v/s State of Tamil Nadu (1997) 2 can be used to illustrate this point. In this case, it can be noted that the accused was intending to defend himself and this resulted in the dealt of the aggressor. A case of culpable homicide was opened against the accused since the law does not allow anyone to kill another person. However, the degree of punishment in a case of culpable homicide is a less severe compared to murder given that the death of another person may not be intentional but a result of circumstances beyond the control of the accused. 2.Venkatesan v/s State of Tamil Nadu (1997) This shows that the right to life is upheld and the law is specifically designed to save life among different people in a community. Societies may be ungovernable in the absence of laws that are meant to prohibit such actions that are against the norms of the society. The law of the land also posits to the effect that there is no person who is above the law and there is no person who has the right to violate another person’s rights as enshrined in the Universal Declaration of Human Rights. Thus, it can be noted that whether intentional or intentional, actions that can lead to the death of the other people are treated as unlawful given that everyone has the right to life and this right must not be violated by any other person. Any person who violates these rights through actions that are seen as posing a danger to other people’s lives is liable for a criminal offence and can be prosecuted upon commission of such offence. Therefore, the aspect of rights and the concept of law go hand in hand since they complement each other. Their aim is to protect the interests of people such that they are not violated. These can also be used as control measures in order to ensure that the communities are governable. Article 17 of the UDHR states that everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property. In some instances, cases of arson are often reported as the major causes of destruction of property and such action is prohibited by the law since it deprives the owner of the property the right to enjoy its use. Thus, Smith (2010), defines arson as the wilful act of setting something on fire, usually property such as home. This is a punishable offence because it endangers other people’s lives and it deprives the property owners the right to enjoy the use of their properties. It can be seen that such kind of criminal offence carries a harsh penalty given that it is committed intentionally with the aim of causing malicious injury to property. The case of R v Caldwell [1981] 13 All ER 961where the defendant who once worked at a hotel and apparently quarrelled with the owner of the property and this led him to set the hotel on fire after imbibing some alcohol. Though the aspect of drunkenness was considered as an extenuating circumstance, the accused was still convicted of a criminal offence given that he deprived the hotel owner his right to enjoy his property. In spite the examples mentioned above, it can be seen that there are numerous other cases that are concerned with protecting the rights of the people under criminal law. It can also be noted that the other branch of the law is regarded as civil law. This particular type of the law is concerned with protection of people’s civil liberties and rights. Unlike criminal law, civil law is between the plaintiff against the accused (Clarke, 1995). Civil law is meant to resolve disputes among people and to give remedies to the persons wronged not to punish the wrongdoers. As such, this section of the essay seeks to evaluate the link between rights and law under the ambit of civil law. People have various civil rights which should not be violated and they are obliged to obey certain norms if the government is to protect their human rights. There are certain civil rights that should be enjoyed by a person and these are usually protected by the tort laws (Brown et al, 1993). Such rights include but not limited to the following: the right to be free from bodily harm, the right to enjoy privacy, the right to conduct business without unwanted interference and the right to be protected against trespassers on private property among others. 3. R v Caldwell [1981] 1 Thus, tort laws are specifically designed to protect some of these civil liberties. Under the case of Capiro Industries vs. Dickman (1990)4 the plaintiff has a duty to prove that all the following elements existed in a particular case in order to be successful in a lawsuit: The defendant owed the plaintiff a duty care The defendant acted in an unreasonable manner The breach of duty care was closer injury of the plaintiff The plaintiff has been harmed or injured Once these conditions have been proved by the defendant, it can be seen that he or she is liable to get some remedies in the form of compensation for the loss or injury suffered as result of the negligent behaviour of the defendant. There are various cases related to civil issues and there are also remedies that are meant to resolve disputes as well as to compensate a person that has been wronged. However, in some cases, there are also defences available for the defendants in cases arising from civil issues hence it can be seen that the law is meant to protect the rights of both parties involved in the case. Article 12 of the Universal Declaration of Human Rights states that no one shall be subjected to with his privacy...nor attacks upon his reputation. Everyone has a right to protection of the law against such interference or attacks. It can be noted that the issue of privacy constitutes a legal right for the citizens and this must be upheld since it is protected by the law. Cases in breach of this legal right are mainly related to issues of defamation which is described as a group of torts which seeks to protect a person’s reputation from unwarranted attack against his privacy (Sweet & Maxwell, 1998). 4. Capiro Industries vs. Dickman (1990) In such a case, it can be noted that the law of defamation is primarily concerned with protecting the reputation and privacy of individuals. However, there is need for the plaintiff to prove the existence of the case involving defamation in order to get compensation for the damage that may have been suffered. For example, the case of Reynolds v Times Newspapers Ltd and others [1998] 3 WLR 862, [1998] 3 All ER 961, [1998] EMLR 723Court of Appeal (Civil Division) 5 helps to show the significance of defamation law. In this case, the plaintiff who was a prominent public figure in Ireland won the case against a British paper which had published a story alleging that the politician was responsible for orchestrating a political crisis in Ireland which led to the resignation of the plaintiff. Thus, it can be seen that this law is mean to protect the individual’s civil rights related to privacy. However, there are also defences for this particular type of case given that the defendant also has a right to have fair judgement. There are various cases that can be used to illustrate the significance of civil law with regards to protection of various forms of human rights. Essentially, the law is mainly concerned with solving disputes that can exist between the parties involved. The court is the highest authority that has the power to solve such issues given that there is no one who is above the law of the land. There are also remedies that can be effected should the defendant found guilty of an offence against the plaintiff. In such a scenario, compensation in the form of money or anything equivalent will be offered so as to resolve the case between these people involved. However, as noted already, there are also some defences that can be inferred by the defendant given that he or she has a right to reveal his own side of the story. 5. Reynolds v Times Newspapers Ltd and others [1998] 3 WLR 862, [1998] 3 All ER 961, [1998] EMLR 723Court of Appeal (Civil Division) Such kind of law therefore is not one sided since is primarily designed to fulfil the interests of all the people who may be involved in such a case. Priority is given to the protection of citizens’ rights and this is a measure that is meant to ensure that social relationships in societies are conformed to as well as to promote social order. Without laws, human rights can be easily infringed by other people and this can disturb peace. The human rights issue is an international issue given that it is prioritized in various sections of the world. Apart from the Universal Declaration of Human Rights of 1948, it can be noted that there are also various conventions that are meant to address the issue of human rights. The Hague Convention of 1907is primarily concerned with outlining the measures that can be implemented by the government in order to protect the rights of human beings (Brownlie, 1993). This convention is mainly concerned with the fight against criminality and other forms of cruelty and violent treatment of human beings. For instance, war crimes perpetrated leaders of different countries are regarded as an act of gross violation of human rights and the perpetrators of this kind of crime are often brought for trial to the Hague court of justice. This convention which was ratified by all member states is law by itself and it is meant to protect the interests of humanity so that citizens are not wantonly abused by their leaders. It can also be seen that the 1993 Vienna World Human Rights Conference is another international event that was specifically meant to address various issues related to human rights during the post Cold War era (Donnelly, 1993). Governments of different states have realised the importance of upholding the principles of human rights and this is kind of conference has been designed to address such issues as well as mapping the way forward with regards to the measures that can be taken with regards to protection of these inalienable rights. On the other hand, in can also be noted that the 1995 United Nations 4th World Conference on Women in Beijing was meant to focus on the issue of women rights. The issue of women rights has become topical across the whole world and governments are encouraged to take measures that are meant to protect these rights. This is mainly done through the enactment of laws that are mainly concerned with protecting the rights of these groups in society. It can be noted that various states through different acts of parliament have made it unlawful to ill-treat other people on the basis of their gender. This goes hand in hand with the notion of equality as outlined by the Universal Declaration of Human Rights. It can therefore be noted that various elements related to the aspect of human rights are responsible for shaping different laws in different countries. Through various conventions about human rights, it can be seen that various states are taking a leading role in formulating policies as well as laws that are meant to encompass different aspects of human rights. Thus, it can be noted that there is a close relationship between the concepts of rights and law. Different aspects of human rights are taken into consideration when formulating the supreme law of the land which has to be abided by all the citizens. In turn, this law is applied in order to protect the rights as well as other related interests of the citizens in a given state. It is the duty of the state to ensure that these laws are enforced in order to create a governable state. The laws are also meant to promote a good relationship among the citizens which can promote peace and tranquillity in different societies. Failure to uphold such laws and moral principles concerned with respect for life can lead to tyranny which can lead to difficulties with regards to governing such a state. Over and above, it can be noted that there is a close relationship between the aspect of rights and law. According to John Locke’s Second Treatise Government 1776, human beings are born with inalienable rights and these should not be violated. On the other hand, it can be noted that the law of the land in different countries is designed to protect the rights of the citizens in different ways. It can also be noted that everyone in a given state has a duty towards the state which in the interests of the citizens prescribes certain norms of conduct that are regarded as binding (Kleyn & Viljoen, 2002). These norms should not be violated and anyone who transgresses against them would be committing a crime that can be treated as a threat to the society as a whole. 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