Republic of Zakville Legal Issues - Case Study Example

Jurisprudence - Theory of Law February 23rd 2006 Jurisprudence - Theory of Law The Republic of Zakville recently executed the Animal Rights Activist, Miss Edwin, after a trial held in secret. The execution was carried out under a decree which was passed by the Republic of Zakville after Edwin was found campaigning against cruelty to animals. In examining this case we must determine whether the republic's legal system and laws are morally justified in taking the extreme step or whether they violate human rights in the most abhorrent way. Every country possesses and adheres to its own rules of law when punishing offenders. In many cases, appropriate punishment is dealt for the severity of the crime committed. The more brutal the crime, the harsher the punishment. But there are nations that impose extreme retribution for even minor misdemeanors, China being a case in point. Each year thousands of Chinese citizens are put to death for petty offences. Many are carried out in secret and thus go unreported. Exactly what criteria nations like these employ to deal out this kind of punishment is a question that compels the investigation of different kinds of laws that operate on a society. This is jurisprudence - the theory and philosophy of law. The study aims to appreciate the elementary nature of law and examine its rationale, organization, and relevance. Viewed practically, studying law and how it functions can help find ways to improve society. Irrational laws can be attacked as being contrary to natural law and morally unjust. Together, natural laws and positive laws form the scope of jurisprudence. The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law (Tyler)." It is also called the philosophy of law and there are four common aspects in legal philosophy. The first type seeks to analyze, explain and criticize entire bodies of law most commonly discussed and studied in law text books and legal encyclopedias. The second type of jurisprudence evaluates and distinguishes law with other subjects of facts such as religion, economics, literature and social sciences. The third type of jurisprudence seeks to divulge the moral, historical and cultural basis of a particular legal idea. The fourth aspect of jurisprudence concentrates on deriving answers to conceptual questions as 'What is law' and 'By what basis do judges decide cases' Jurisprudence theory can also be classified into two types of analysis: One is analytic jurisprudence which studies laws "as is". The other is normative jurisprudence which studies law that "ought to be" Analytic jurisprudence is using an unbiased view point and evocative language when discussing various aspects of the legal system. The law is viewed "as is" and considered only as it exists. Some important questions of analytic jurisprudence are: What is law What is a legal system What is the relationship between law and morality Do all societies have a legal system How should concepts like legal rights and obligations be understood Normative jurisprudence discusses what law ought to be. Also questions of morality and what values are important are looked into. Some important questions of normative jurisprudence are: What is the proper function of law What kind of criminal behavior deserves punishment and what are the permissible types of punishment What rights do people have and what is justice Does society have a duty to obey the law and what value does the rule of law have In the case of animal rights activist Miss Edwin, a trial held in secret directly contravenes general moral human laws. A fair trial one in which both sides of the case is heard by an impartial judge and jury is commonplace in many nations. Such a trial gives the defendant a chance to prove his or her innocence and reduces the chance of sending an innocent person to jail or suffer capital punishment. In the UK, the law clearly states that the accused are deemed innocent until proven guilty. This is not a law of nature but a legal law, one where basic human rights are recognized and an environment is created to uphold these rights. Law of nature on the other hand deals with morality and the theory tries to recognize a moral compass to guide in the creation of laws (Wikipedia). Usually feelings and notions of what is right and wrong are the underlying principles governing natural law. This could vary greatly depending on various interests. In the case of the countries forming the European Union which signed the Second Optional Protocol, these nations abolished capital punishment. The natural law here has prevailed and won over hearts and minds of leaders and lawmakers into agreeing that capital punishment is wrong and should be eradicated. In nations that retain capital punishment, natural law has not taken roots in governance. Natural law decrees that anything morally 'right' is law and anything 'unjust' is not a part of natural law. Theorists say that punishment carried out without the use of natural law will be judged by 'higher powers' - that divine retribution will take its course. Natural laws gain respect and credibility when they meet certain requirements such as being impartial and existing in the realm of public knowledge. Without these fundamental requirements the laws are less likely to be recognized or treated with much regard. Legal positivism or positive law is law that can be changed or updated depending on circumstances. For example abortion can be legal today but illegal tomorrow (Wikipedia). Cigarette advertising may be permissible today but prohibited tomorrow. Alcohol can be banned in world cup football venues to prevent hooliganism but not at local football events. There are many advantages with flexible laws. They can be adapted depending on the circumstances and needs of society at any given time. Newly elected governments placed in office can relax some laws but enforce other existing ones. On the internet, most websites have a 'terms and conditions' or 'terms of use' clause. These may be modified over time to keep up with changes made to the site and also either curtail misuse of the site or, encourage users to take advantage of additional benefits the site may have to offer. Inflexibility would bring businesses to a standstill. Some people are of the opinion that since positive laws are changeable, they are arbitrary laws without reason. This is precisely why positive laws must justify themselves with good background basis for their existence. Positive laws are laws that can be separated from ethics. For example driving on the wrong side of the road has very little to do with ethics and morals. Driving laws exist to enable the public to abide by one rule in order to avoid accidents. Each country has its own driving regulations. In the US, the left hand lane is meant to be used and in the UK, the right lane. A citizen of one country visiting the other must obey its laws. This is not a moral law but just a rule that citizens need to obey. A lack of these rules generally leads to confusion and chaos. In the case of Miss Edwin, the hypothetical Republic clearly works on legal positivism. In other words, the law has been 'constructed' so that individuals in society maintain social order. They formulated a law stating that campaigning against cruelty to animals, was against local laws and policies. Clearly they deemed that animal cruelty was not an issue that was to be questioned. That brutalizing animals does not seem to be a moral issue with the authorities. And so any opposition to this decree could not be entertained. The flaw is that they appear to be violating moral laws and no one, including governing bodies, should be above moral or natural law. Legal positivism has its critics. One of them is Ronald Dworkin who developed interpretive theory. His argument against positivism is that legal standards originate from precise and current legal practice and not from judicial considerations. A valid proposition of law must have sufficient 'institutional support'. He argues that in cases when people's legal rights are controversial, the best interpretation of the law decides their legal rights. His view is that there exists a unique correct answer in every case. This opposes the legal positivists view that due to gaps in laws it is not possible to find a perfect answer to every legal situation and judges must use discretion in these difficult cases. Dworkin proposes a theoretical scenario where an extremely competent judge, named Hercules, who has vast knowledge of legality and considerable access to resources, will always find the perfect answer to difficult cases. Hercules, Dworkin say, sees the law as a seamless web and is able to construct a theory that best fits the law in order to find the right answer to a particular case (Wikipedia). Jeremy Bentham was another great philosophical radical who proposed the utilitarianism which argues that the right act or policy was one which garnered the greatest happiness for the greatest number of people. This 'greatest happiness principle' has its problems with regards to fairness. For example in societies where torture and execution is regarded as something to witness, people might actually gain sadistic pleasure in watching the suffering of another. John Austin, a noted British jurist, proposed a theory of law stating that law is the command of the sovereign governing body bound to its people or members whose rule they're under. This according to him is positive law. The sovereign body could not be legally limited but he did accept that 'popular opinion' may limit it. For example, a people of a nation may oppose an unfair law and demand its removal. One of the most influential legal philosophers of the twentieth-century was H.L.A. Hart. who developed a refined theory of legal positivism within the framework of analytic philosophy. His ideas criticized John Austin's theory of law that the law is the command of the sovereign governing body bound to its people or members whose rule they're under. Another idea he developed is that there is a difference between primary and secondary legal rules, where primary rule controls conduct and secondary rules all the primary rules to be altered, created or extinguished. His idea of the rule of recognition was a social rule that distinguished between those rules that had authority of law and those that did not. Marxist view of jurisprudence focuses on the connection between law and historical, economic and social structures and sees law as having no legitimate dominance. Key Elements of The Different Meanings of The Rule of Law (Leung) Antithesis of Arbitrary Power. Laws govern every individual in a society. This includes law-enforcement agency officials, government officials etc. Anyone acting outside the realm of authority can be subjected to the impositions of laws and suffer punishment as a result to the breach of laws. Equality Before the Law. The process of applying laws must be done without discrimination. Each individual must be subjected to law regardless of their race, religion, social status and wealth. For example, high profile public personalities who have been suspected of committing a crime should go through the same legal process and administered the same punishment if proven guilty, as an ordinary individual. Trials must be fair and conducted in a legitimate manner with an impartial judge and jury. A Formal, Rational Court System. 'Formality' and 'Rationality' describes the system as being predictable with little chance of guess work or arbitrariness. This shows the system as being transparent, having open, regular and established procedures as well as being objective and consistent in manner. Judicial Independence and Separation of Powers. Abuse of power by a government can be minimized if the judicial system is separate and independent from the legislative and executive. Judges should be uninhibited in making decisions without the influences and coaxing from higher powers. Another school of thought in jurisprudence is interpretivism and includes works of a number of thinkers such as Josef Esser, Theodor Viehweg and Friedrich Muller (Wikipedia). Interpretivism consists of three main points: Law is created by the judiciary, by law makers and is not a collection of conventions, data or facts. There is no distinction between law and morality but differences do exist. Law does not exist within nature and legal values and principles exist only in the legal practice. Amnesty International says that "No judicial system is infallible, however sophisticated the justice system may be, death penalty always carries with it the risk of lethal error." (Amnesty International 2005) Wrong people end up on death row. Although every prisoner claims innocence, some actually are. Quite a few are released due to a lack of evidence or procedural misconduct in the investigation process, proving the fallibility of the judicial system. Miscarriages of justice from mistaken eyewitness testimony, substandard forensic work and procedural misdemeanors are all arguments to abolish the death penalty. It is conceivable that many innocent people have been put to death for the above reasons and it is society that is left feeling guilty that the justice system fell short. Retributionists contend that seeking retribution constitutes a permissible use of governmental authority. The death penalty makes a moral point, that it is a demonstration of the most severest condemnation for the most atrocious of crimes (Hickok 1991). In the case of Harold Shipman, Britain's and possibly the world's most prolific serial killer, death penalty if it was legal in Britain, might have been administered for his killing of more than two-hundred people during the period from 1975 to 1998. But his trial had been fair with as much evidence gathered as possible. The entire judicial process was put to full use. The thoroughness of the investigations, eyewitness reports and background checking left no stone unturned. Appeals from the defense were made. But the severity of his crime gave him no chance with the courts who handed the fifty-seven year old life imprisonment. When he hung himself in his prison cell in January 2004, many thought he had escaped justice having never confessed to or given reasons to any of his crimes. In quite a few countries the grant for pardon does not go beyond the trial courts. Little chance for the sentenced to have their appeals heard even when they are innocent. Also, many defendants cannot afford legal representation and in these cases courts appoint attorneys with questionable credentials leaving the accused at their mercy - more reason to abolish capital punishment. While death penalty proponents say that executing a murderer might actually save other people's lives, the truth about a person's guilt can sometimes never be fully proven. Abolishing capital punishment would be the only safeguard incase justice miscarried. Justification for a type of punishment takes five forms retributive, deterrence, preventive, rehabilitative, and restitutionary (Himma). Retributive justification says that merely committing an offence deserves punishment whose magnitude should be proportional to the offence committed. The problem is that just because someone deserves punishment does not permit an authority to issue it. For example when someone else's child commits a misdeed, it does not justify you to punish him. Retributive theory also examines a person's previous misdeed as justification for punishment. In contract, utilitarian theories look ahead to the beneficial consequences of punishing a person. Utilitarian reasoning has three main points. Deterrence justification reasons that the punishment handed to criminals, socially benefits other people in the way that it deters society from committing the same unlawful acts. The problem here is that it justifies punishment on a wrongdoer on the strengths of the effects it has on others. But this also opposes the principle that it is immoral to use people as a means to achieve results. Preventive justification contends that detaining a person actually prevents him or her from committing unlawful acts on society during the incarceration period. Rehabilitative justification argues the improvements on moral character that punishment offers. The above justifications have the same flaw. A crime can be prevented and rehabilitation administered without subjecting the offender with the discomfort of punishment. Detaining an offender in a pleasant environment is much more preferable and does not break any moral laws. Restitutionary theory focuses on victim's loss as a result of the offender's misdeeds. It centers on sentencing an offender to compensate the victim in proportion to the loss. The problem here is that this theory fails to distinguish between punishment and compensation. For Miss. Edwin, the law had clearly gone against her. Any trial she may have been subjected to was flawed. The citizens of this republic are under immoral laws which oppose all natural laws. Both natural law and positive law had been abused by an authority that did not recognize the moral underpinnings of the issue. John Austin's theory of law stating that law is the command of the sovereign governing body bound to its people, comes under fire for the unconstitutional legal norms that this sovereign nation upholds. In order for justice to take root, this republic must re-examine the standards by which they impose laws, revise and implement new theories of law. References Amnesty International (5-Apr-05) Amnesty International Press Release. Retrieved 21th Feb 06 from http://web.amnesty.org/library/index/engact500112005 Hickok, Eugene W. (1991). The Death Penalty is not Cruel and Unusual Punishment. Retrieved 21st Feb 06 from The Bill of Rights: Original Meaning and Current Understanding. P. 316. University of Virginia Press. Himma, Kenneth Einar. (2006). Philosophy of Law. The Internet Encyclopedia of Philosophy. Retrieved 21-Feb-06 from http://www.iep.utm.edu/l/law-phil.htm King, Rachel. "Don't Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty" 2003. Page: 3. Rutgers University Press. Leung, Jason. The Rule of Law. Retrieved 19-Feb-06 from http://www.jasononline.com/law/ruleoflaw.htm Tyler, Grove and Finkelstein, Eric. (21.11.05). Jurisprudence. Wex. Cornell Law School. Retrieved 19-Feb-06 from http://www.law.cornell.edu/wex/index.php/Jurisprudence Wikipedia (12.2.06). Legal Positivism. Retrieved 18-Feb-06 from http://en.wikipedia.org/wiki/Legal_positivism Wikipedia. (12.2.06). Jurisprudence. Retrieved 18-Feb-06 from http://en.wikipedia.org/wiki/Jurisprudence Wikipedia. (1-2-06). Interpretivism. Retrieved 20-Feb-06 from http://en.wikipedia.org/wiki/Interpretivism Wikipedia. (22-2-06). Ronald Dworkin. Retrieved 24-Feb-06 from http://en.wikipedia.org/wiki/Ronald_Dworkin Read More