The different influences which impact on the reform of unlawful conduct - Essay Example

? Discuss the different influences which impact on the reform of unlawful conduct Discuss the different influences which impacton the reform of unlawful conduct In order to stay relevant in today’s constantly changing society, the laws need to be reviewed regularly and reformed where and when necessary. By definition, unlawful conduct refers to any action that can be identified as contrary to, or forbidden by the law (The W100 team, 2011). This definition covers both criminal and civil unlawful behavior. In criminal law, the litigation is always brought forward by a specific prosecutor -the state (in the name of the Crown). However, in civil cases, the circumstances are a different in that, the lawsuit can be initiated by any legal private party who is normally referred to as the claimant. The task of bringing collecting and presenting proof against the defendant rests squarely on the shoulders of the claimant (Samaha, 2012). The W100 team (2011) posits that in order to determine unlawful conduct, it is paramount that sufficient proof is produced placing the particular party at fault so that relevant action may be taken. Without doing this, no legal action can be taken against either party. It is very important to analyze in depth the factors which influence why any conduct should be considered unlawful. Technological development plays a very significant role in this. Issues to do with copyright infringement and intellectual property are constantly changing and so reforms need to be carried out from time to time regarding the same. Social climate also determines a lot in influencing reform. Changing times affect what laws are made and implemented. A perfect example is cited whereby during the Shakespearean period, it would be perfectly legal for a girl of 13 and a boy of 18 to get married. However under the current laws of Wales and England, this would be unlawful conduct because 16 is the minimum age for marriage (The W100 team, (2011). Worth noting here is that not all rules of social morality are considered unlawful. Differences in social values in different countries may to some level dictate the differences in laws. Protecting individuals and society from harm is a very important factor that influences reform. The activities classified as unlawful for this reason are usually seen to cause direct harm to those engaging in them or to the society at large. For example, the possession of cannabis is considered unlawful. However, the legality of this situation may change in the circumstance whereby the cannabis is prescribed by a physician to be used for medicinal purposes. It is inevitable that social morality will sometimes influence the lawful or unlawful nature of an act. Economic reasons also come into play in matters of legislation. Borrowing items without someone’s consent may be considered unlawful in some societies whereas it is perfectly legal to do so in others, provided the items are returned. These are societies where ownership of property is more communal as opposed to where private ownership is prioritized. In some cases, the economic effect of a person’s action is actual ground for determining whether an action is unlawful or not. The array of factors mentioned above clearly indicates the complexity of defining conduct as unlawful or otherwise. Some activities that are considered to be out rightly immoral and antisocial do not necessarily warrant them to be earmarked as unlawful. Parliament plays a big role in reform and determining unlawful conduct. It represents the democratic will of the people. Pressure from the public and the media has been seen to work on many occasions in contentious issues regarding legislation, therefore making parliament one of the most direct ways of reform on unlawful conduct. Despite the judiciary not being primarily concerned with law reforms, it is involved in identifying anomalies in the law and calling for relevant amendments to be made on the same (The W100 team, 2011). The truth of the matter is that the judiciary has a strong hand in legislation. Perhaps too strong at times due to the fact that it is not answerable to the public and can therefore use this power for whatever it deems right. The European Court of Human Rights was put in place to protect fundamental human rights and as a result its laws and regulations are binding to all member states. This means that they have to change their legislations regarding human rights to be in line with those of the European court of Human Rights. Clearly this is a strong determinant in deciding what unlawful conduct is by allowing citizens to challenge public authorities. The Law Commission which is an independent body charged with the responsibility of overseeing how the law is followed in Wales and England also has a great effect on determining what unlawful conduct is. This is because they research on areas of contention regarding the law and recommend the relevant changes to parliament. Advisory committees have a similar power in that they make sure that relevant improvements are made to the law in a bid to keep up with changing times. Green Papers and White Papers provide open invitations to the public into discussions for proposals regarding legislative change. They provide the public with detailed information on the proposed law, to which they can make recommendations to be considered before the law is passed. Conclusion In a democracy, ultimately allocating all legislative powers to one authority is definitely not in the best interest of the people. This is because, in the past, centralized power has proven to be very lethal when irresponsible leaders in office decide to usurper their own selfish gains. As such, having more than one authority in control of the laws of a country puts in place the much needed checks and balances which prevent abuse of power. Question 2 How and why can legal personality change? A legal personality is defined as any entity that is entitled to having legal rights and enjoying the freedoms that come with these rights provided that they are enjoyed within the confines of the legal system in which this entity is a constituent (The W100 team, 2011). The legal personality has the capacity to sue, be sued or enter into a third part agreement. The beginning of the legal personality varies from country to country. Some consider it to have begun at conception while others will only consider it a legal entity only after it has left its mothers uterus to be born into the world. Similarly, the contention continues when it comes to determining when a legal personality ‘ends’. With the onset of life support technology that can keep the human body alive for extended periods of time, there ceases clear-cut legal definition for death which was previously defined simply as when the heart stopped beating. Of great importance is the ability of a legal entity to make their own choices especially when it comes to matters to do with their treatment. However, even after death, human being still have a diminished form of legal personality which means that if a legal decree was made by the deceased that his body remained intact even after death then their wishes are to be honored even if the next of kin decides otherwise. A multiple legal personality refers to the situation whereby a single natural human personality can enjoy the freedoms, rights and responsibilities that come with more than one legal personality. For example being an adult citizen, an employee, a voter, a father and a tenant are all different legal personalities but can all be attributed to one person. Legal personality and equality also presents some issues in that one’s legal personality can affect the legal rights that they possess. Matters surrounding birth certificates and gender recognition also became an area of great scrutiny, especially with the rise of gender reassignment surgeries. In time and lots of pressure from cases regarding same sex marriages and discrimination, gay and lesbian relationships have now been awarded legal recognition by the Civil Partnership Act 2004 (Samaha, 2012). A legal personality does have its limitations as well, especially depending on the characteristics of the entity. For example, in England, even though a person under the age of 18 is a legal personality, consumption of alcohol for this entity is deemed unlawful. Conversely, this action ceases to be unlawful after the person has attained the age of 18 years. In the event that a legal personality is of ill mental health or otherwise lacks the mental capacity to carry out sound judgment then they are considered unfit to make legal decisions; Hence a limitation to the legal personality. Conclusion Whether a human being is considered a legal personality before or after birth is truly a matter of great contention. The same goes for those whose right to make decisions is compromised by their mental state as illustrated in the example of Diane Pretty who had a mental condition (motor neurons disease). She felt that her intellect was unimpaired and she still had the capacity to make her own decision to have her husband assist her in ending her life, but the authorities were not in agreement with her on this. However, these limitations are sometimes important like in the case of protecting minors from consuming alcohol, entering contracts thereby safeguarding their general well-being. Explore the role of mens rea and actus reus in criminal law. In criminal law, there exist two conditions which need to be fulfilled so that liability of the crime can be established. First is actus reus which according to the Cornell University law school is Latin for ‘guilt act’. It refers to the omissions, acts or results that make up the physical elements of a criminal act. For example in a criminal case where the crime was murder, the actus reus is the means by which the unlawful act of killing the person was executed which could be in the form of shooting the person, strangling the person or even poisoning them, all with the aim of ending that person’s life (Catherine& Frances, 2011). Mens rea is a Latin phrase that translates to ‘guilty mind’. It is the actual state of mind of the defendant leading up to and while committing a crime. Coupled with actus reus, it is used to investigate that the defendant was of sound mind and in fact aware of his/her unlawful actions and can therefore be proven to be guilty of the crime in question; Except in the case of strict liability crimes where mens rea is not required to be proven. In the aforementioned examples, the mens rea involved with shooting or strangling a man is perhaps the defendants intentional purposeful wish end the man’s life. Catherine & Frances (2011) indicate that these two elements play a very significant role in criminal law. Before a person is convicted of a crime, both actus reus and mens rea have to be proven beyond reasonable doubt. It is important to note that whether the defendant knew that the particular act was unlawful is irrelevant. Conclusion While it is important to have proof of both actus reus and mens rea for a person to be convicted of a criminal offence, there exists a grey area which can be manipulated to suit the needs of either party. For example terminology; the definition of malice may differ from case to case and this may cause the ruling to be swayed very easily. In addition to this, despite the prosecution providing clear illustration both actus reus and mens rea, the final decision still rests with the jury who may or may not make the ‘correct’ decision. In any case most rulings are made based on circumstantial evidence which may not necessarily be accurate. Even so, the correlation between these two elements has done more harm than good in the justice system. Reference List Cornell University Law School. (2014, December 4). Retrieved December 5, 2013, from http://www.law.cornell.edu/wex/actus_reus E.Catherine, & Frances, Q. (2012, June 2). Retrieved December 5, 2013, from Criminal Law: http://catalogue.pearsoned.co.uk/assets/hip/gb/hi_gb_pearsonhingered/samplechapter/140 82 807IX.pdf Samaha, J. (2012). Criminal Law, 11th ed. New York: Cengage Learning. The W100 Team. (2011). W100 Rules, Rights and Justice . The Open University. Milton Keynes: Walton Hall. Read More