The Landmark Case of Conjoined Twins - Essay Example

The landmark case of Re A (Conjoined Twins concerns the court’s decision on whether it would be lawful to separate conjoined twins knowing that to do so would inevitably kill one of the twins, whereas inaction would result in both of their eventual deaths. It was considered that the potential charge could be murder, as the surgeons knew that the procedure would kill one of the twins. This is certainly an example of a ‘hard case’. When no specific law exists to tell us either way, where are we to resort to in order to find an answer? In such a sensitive case, can the law provide for an answer in every circumstance? As a natural lawyer, one believes that there is a concept of law beyond that of the written provisions, and therefore an objective knowledge of right and wrong. Where authority does not provide for a specific case, judges can be trusted to have recourse to natural law principles in order to decide such a case. Indeed, in the present case, it appears that the judges were more intent on trying to justify their decision based on the posited laws in question rather than explore the actual problem. This need to base a decision on a specific rule in order to prove it valid in such a difficult case should not be the main focus of the decision. Rather, the judges should have openly referred to moral considerations as separate from the posited law which could not provide the relevant provisions anyhow. The posited law concerning this case is simple – it is unlawful to murder a human being. This simplicity could not possibly have provided the legal counsel to such a difficult and unique case. Therefore, a moral consideration should have been able to play a role in the decision, for the judge’s reflective intellect is able to decide as to what justice requires. Interestingly, the court made it clear that moral considerations were beyond their abilities, and that to choose between two equally plausible possibilities (there were as many moral reasons to separate the twins as there were to not separate them) would indeed separate law from morality. The natural lawyer would find this rather ironic, as human law derives its legal validity from natural law, and therefore, there always has been or always is a connection between law and morality.2 This judgement of the judges in itself was a somewhat moral assessment, albeit a decision to not openly recourse to moralistic concepts. It appears though that the decision was hugely based on moral considerations, which were then hidden behind the posited law principles. This strongly supports the notion that moral law and human law cannot be separated; it is the validity of this human law as law which is granted it by the moral law it is based upon. And so, one would suggest that the judges progress past the actual posited law in its simplicity, and delve into the moral aspects and the specific, more complicated moral implications with which it was intended to apply. So how would a natural lawyer approach the case in question? What aspects would be considered in order to arrive at the decision? If there exist natural rights which cannot be entrenched upon by positive law, 3 then the assessment of such rights would not move away from the positive law in question, but rather the judge would be able to openly reason morally, rather than conceal such reasoning behind the posited law. One could argue that one judge’s moral reasoning could prove very different from that of another, depending on his personal outlook.4 But, it is also strongly arguable that a universal set of morals does underlie the law,5 and that when the latter does not provide enough guidance, then the judge must consider the moral reasoning behind the law in question to arrive at a more suited decision based on the posited law, but not necessarily confined to it. Aristotle6 states that natural justice is not affected by individual’s opinions or interpretations of it, so we may enter into a moral assessment as to whether it would be just to separate the twins or not. To separate the twins is a form of murder indeed, and would result in the death of one, albeit inevitable from the outset. But to keep the twins intact ensures both of their deaths, when one could have a good chance at life if the procedure were to go ahead. Is this not then a form of murder, but of two lives, if the procedure were to not be performed? Why the need to hide behind terms of ‘necessity’ and ‘omission’ to come to the same conclusion? If the judges were able to openly assess the moral aspects of the situation, then perhaps everybody would have understood on a much deeper basis just how the decision was reasoned. Justinian7 exclaims that the natural law is never changing whereas positive law constantly develops, therefore a judge, when he refers to moral considerations is referring to the ultimate precedent provided for by natural law; he does not do what he thinks is right or wrong. He decides what we all consider to be right, as we each have recourse to our moral codes, which lie way beyond that of the posited law. It could be argued that the decision to undertake the separation is a form of utilitarianism - the least harm caused. Yet even this decision, or this way of seeing the situation could be a part of one’s natural inclination to do good. This utilitarian method of thought could be said to be based on the natural inclination to cause the least harm to all involved – arguably a natural law principle. The mere inclination to do good may be enough to make the correct moral decision; need we be confined to the restrictive concepts of posited law, which in this case could not provide guidance from the outset? Indeed, if a posited law is clear and concise and applies unquestionably to a situation, the one has not the need to consider moral judgements. However, in such difficult cases, the posited law is simply not enough, and the judge must ‘stretch’ its meaning and application to the situation at hand, which requires nothing less than moral reasoning on the part of us all. In conclusion, in such difficult cases, the positivist should allow judges to move away from the confines of the posited law if necessary, for some decisions simply must be based on more moralistic reasoning than posited law. It is clear that judges often make such moral reasoning, but if we were to allow them to state these reasons clearly, we could ensure a more fair and just method of legal debate rather than hide such reasoning behind legal terms and posited law which was obviously not applicable to a large degree in the first place. Bibliography Aquinas, Thomas. Summa Theologiae: Part 2, question 94, article 2 Aristotle. Nichomachean Ethics [350 BC] Finnis, John. Natural Law and Natural Rights [1980] Rousseau, Jean-Jacques. The Social Contract [1762] Justinian. Institutes [535 CE] McLeod, Ian. Legal Theory, 2nd edition. Palgrave Macmillan (2003) Michalowski, Sabine. "Reversal of Fortune "Re A (Conjoined Twins)" and Beyond: Who Should Make Treatment Decisions on Behalf of Young Children?" Health Law Journal Vol.9. 149 (2001) Wendel, W. Bradley. Jurisprudence and Judicial Ethics, IVR World Congress of Philosophy of Law, Poland. (2007) Read More