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The Concept Of Law

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For centuries legal philosophers have struggled with the challenge of defining exactly what ‘law’ is and what true purpose it should serve in society. From this quest to expound ‘the concept of law’ three prominent divisions of legal ideology have arose. The debate between these philosophies and their respective legal philosophers makes up a significant part of the study of legal theory; known as Jurisprudence, something that anyone who goes on to study law will undoubtably become extremely familiar with.

The first truly developed theory of law was thought up by Saint Thomas Aquinas, a13th century Catholic priest, who also happened to be a keen jurist. His ideas are very much reflective of his personal background and the period of time in which he lived. Aquinas’s theory, coupled with ideas from Aristotle and Roman jurists, became classified as ‘natural law theory’ and consists of two distinct but inter-related components.

The first of which is the ‘natural law theory of morality,’ defining law as a set of rules that allows one to live “a good and flourishing life”. The theory goes on to introduce an idea of ethical objectivism opposing speculation of ethical subjectivism from alternative legal theories. This objectivism, in Aquinas’s intentions at least, is in reference to the irrefutable nature of God’s moral commandments and the inability of mankind to debate or decipher their own interpretations of right and wrong. The law, therefore, according to this theory exists as a means of formally implementing the moral obligations placed on man by God.

The second part of the theory; the natural law theory of law, distinguishes between what is law and what is not. The bottom line of natural law being; as St Augustine put it, lex injusta non est lex. This latin phrase is translated to ‘an unjust law is not a law’ and effectively cements ethics and law together, claiming that any law that does not represent ethical justice is not morally or legally binding. The great revolutionaries of modern times, such as Nelson Mandela or Martin Luther King, would be seen as supporters of this opinion.

In the deeply religious time of Aquinas where the vast majority of society was God fearing it may have been possible to expect total respect for any law based on ‘God’s will’ as the perceived punishment for breaking such a law would be an eternity in hell as outlined by God himself. However, to attempt to apply the theory of law occurring naturally through the will of God, to todays significantly more secular society, is a much greater challenge.

It is from this failure of natural law to relate to modernity that the development of John Austin’s more pragmatic theory of law was enabled. Contrary to the utopian ideals embedded in Aquinas’s philosophy, Austin took a more raw and realistic stance when attempting to define law and did so based on two main principles; command theory and separation thesis. Command theory states that law is the command of a sovereign backed by punishment, giving the impression that the legal system exists purely to allow a ruler to effectively govern their people ensuring that society is structured as they wish it to be. No mention is made of the effect of ethics or morality on the legitimacy of law; this notion being the basis of separation thesis; the idea that ethics and law can exist as two entirely separate entities and that the synonymity of the two (as inferred by natural law theorists) is a myth. Austin claimed that, ‘The existence of law is one thing; its merit and demerit another’ explicitly contradicting the lex injusta non est lex principle of natural law. Of course in reality we are aware that laws have been passed that are immoral and contradict popular ethics and in my opinion Austin saw it as his role to provide the world of jurisprudence with a reality check, almost mocking the childish idealism of Aquinas et al with the harsh truth that is; law need not be associated with morality, and the moral correctness of a law has no effect on its authority. This school of thought became known as legal positivism.

Whilst there is general consensus that, in terms of modern day applicability, legal positivism was a much sounder model than natural law theory, as times progressed into the 20th century the reductionism of legal positivism became clearer and the theory was in need of further development. This was the position of Herbert Lionel Adolphus Hart (H. L. A. Hart). Hart felt that applying legal positivism to the legal systems of the 20th century was impossible due to command theory. Command theory failed in two main areas. Firstly, most countries now had systems in place that limited the power of the sovereign to that inferior to the law and placed them in a position where they were unable to create law at will. Additionally, contractual law, tort law and international law all had no relevance to the idea of a sovereign. These sectors represent a huge fragment of the law as a whole and thus Hart felt it necessary to update legal positivism.

Hart’s reformed legal positivism; as outlined in his 1961 book The Concept of Law, attempted to explain the law of modern times using the foundations set by Austin. Firstly, Hart spoke about the categorising of laws into primary and secondary rules. Primary rules followed the guidelines of Austin’s command theory in the sense that they were rules backed by punishment. Secondary rules, on the other hand, are where the two philosophies differ. Hart claimed that the law also consists of rules that aim to provide a framework for the autonomous functioning of society, these would include contract law and laws outlining civil rights, according to Hart, these were ‘secondary laws’.

Along with this idea of different types of law, Hart also introduced a model of each individual law’s meaning. If visually portrayed this model would be spherical with a hard dense ‘core’ and a less dense almost fluid ‘penumbra’. Hart stated that  the core represents the obvious and explicit meaning of a law/statute that prevents or enables the action that its creators intended it to. The ‘penumbral’ meaning of a law is the rulings and derivations made from the initial statute that extend to circumstances beyond those envisioned by its creators. The most popular example given to clarify the difference between these two definitions is the idea of a law prohibiting the use of ‘vehicles’ in a park. The core meaning of such a statute would be to prevent people driving cars in the park due to the danger of driving in a potentially busy recreational space. However, surely something like a pram, wheelchair or even remote control airplane may be considered a ‘vehicle’. It is these incidents that would fall under the penumbral meaning of the law. In this case (if charged for breaking the law) a judge would rule on whether the statute includes this particular vehicle and that ruling would become law. In effect Hart was describing English common law.

Personally, I feel that this area marks an overlap between natural law and legal positivism. Hart is stating that judges have the power to create law. These judges work independently from any sovereign or figure of authority and have no agenda from which to create laws. It is therefore clear for one to assume that these judges are using a significant amount of logic to decipher the law. Logic when in the form of deciphering right from wrong is effectively ethics and when one has no agenda other than enforcing justice, these ethics must be based on moral principles. Therefore whilst Hart is certainly not implying that the law should be based on God’s commandments, he is, in effect, stating that laws should be made using human perception on what is and what is not moral. It may not be a clear cut agreement between the two theories but compared to Austin’s ideas of an absolute sovereign creating laws to serve his/her own benefit, Hart’s theory does indirectly coincide with the idea that law should be centred around logical/moral thinking.

Nevertheless, legal positivism and natural law far from coexist peacefully but a middle ground has begun to evolve. Ronald Dworkin, a late 20th century legal philosopher and supposed founder of ‘interpretivism’ (the third school of thought), proposed the ‘right answer’ thesis. This idea states that morality does not govern law (as suggested by natural law theory) nor do existing statutes (as inferred by positivism). Dworkin renounces positivism’s idea that law should be the attempted application of a single law to its penumbral cases and instead states that all law is penumbral and in order to decipher the correct ruling on a case, a judge must take into account the existence of ‘law as integrity’. Law as integrity refers to the idea that law was created as a single entity by a community as a whole to represent their perceptions of justice and therefore any further judgement must be consistent with the perception of justice perpetuated by the legal system in which the judge is operating. In short, any rulings made by judges must be consistent with the tone of the existing laws within that legal system. This ruling cannot be disputed and there is only one correct answer. Accordingly, Dworkin famously stated that lawyers are not arguing over what is the best solution to a case, rather they are debating the right solution to a case.

Each of these theories brings with it a completely new outlook on law and depending on which one you follow, your perceptions of the legal world will vary widely. However, is there a possibility that these theories can co-exist without conflict? Is it possible that each school of thought can act as a piece of a puzzle which, when put together, provides the ultimate insight into law as a whole? To me, this isn’t the case. Each theory represents, almost exclusively, the legal/political/temporal system from which it originated from. To universally define law using a single one of these theories would be an impossible task. Rather, each theory can be applied individually to different instances.

For example; natural law theory, the idea that all rules are based on ethics and only laws of morality are legitimate. This theory could certainly be applicable to a time/place where no formal laws existed and therefore the only rules that one could logically follow were those of universal ethics, that in the 13th century (time of Aquinas) were fundamentally believed to have come directly from God.

Austin’s legal positivism, a theory of law being the direct order of a sovereign and having no tie to morality, could comfortably be associated with a medieval monarchy without a form of parliament, or even a modern day dictatorship where laws and punishment are set out by an absolute ruler. Hart’s development of positivism is relevant to a more sophisticated and democratic society where the ability of a reigning sovereign to enforce laws and punishments is strictly limited. Hart also recognises the development of law from solely ‘rules with punishments’ to rules which provide a framework for societal functioning (secondary rules). His idea of a core and penumbral meaning of laws can be applied to the responsibility of judges to use logic to decipher individual cases based on previous rulings, with these rulings becoming laws themselves. This notion is very applicable to modern day democracies and can be seen in practice with English common law.

Dworkin’s interpretivism is more difficult, it could apply to a more developed legal system such as that of England and Wales, where precedents of cases set principles by which judges must make their rulings from. However, the idea of having no core meaning to laws (entirely penumbral), is perhaps implying the complete abandonment of statutory law. One might see interpretivism as a prediction of a future legal system where a wealth of cases and rulings provides enough precedents from which a judge is able to apply ‘the law’ to any given case using these precedents exclusively with the aid of logic and moral reasoning.

In conclusion, it is wrong to see the theories that constitute jurisprudence as debating the question ‘what is law?’. Each theory seems to refer to its own particular set of queries, with natural law being more relevant to the the debate of ‘What should law be?’ and Hart’s positivism applying more consistently with the question, ‘what is law today?’.  Either way, the study of these philosophies demonstrates the intricacies of studying law and allows one to begin constructing their own ideas of what law is, can be and should be.

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Sado-Masochistic Homosexuality: A legal case study

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R v Brown (Anthony Joseph) [1994] 1 A.C. (HL)

 Facts of the case

The appellants, a group of sado-masochistic homosexuals who, stimulated by drugs and alcohol, willingly and enthusiastically participated in acts of violence for sexual pleasure. The appellants were all above the required age of 21, but there was limited contact with a 15 year-old male, “K”. The activity took place in private; no complaint was ever made to the police; there were no permanent injuries or infections; safe words were used, and no medical attention was ever sought or required. Whilst the activity was recorded, it was not intended to be seen outside of this group, nor sold for profit. The police discovered this activity coincidentally through the course of Operation Spanner. Yet, there is some dispute as to whether animals were involved or not, which if they were would amount to an offence under s12 of the Sexual Offences Act 1956. Most importantly, with the possible exception on one occasion, everyone consented to this activity.

Outcome of the case

The court upheld the convictions and dismissed the appeal by a majority of 3:2. Lords Templeman, Jauncey and Lowry dismissed the appeal since it was argued that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason. Underlying this decision are two further claims: (1) where the victim has suffered harm which is actual bodily harm or worse, then the victim’s consent is no defence, and (2) the satisfying of sado-masochistic libido is no good reason. The majority also held that Articles 7 and 8 of the European Convention on Human Rights have no application here, to which the dissenting judges also agreed partially.

Lord Mustill and Lord Slynn dissented on the basis that consent is a valid defence, except in cases of grievous bodily harm or death. Lord Mustill, having assiduously examined previous cases, thought the court to be free to consider this case afresh, since the earlier cases were inconclusive. Lord Mustill used the doctrine of autonomy to posit that the law should not intrude on the private life of an individual. Lord Slynn disagreed with the majority in that such cases of private affairs, public interest should declare the defence of consent invalid.

Context of the decision

The relevant law surrounding consensual violence before the decision centres around one common law principle and three common law cases. I am discounting the Wolfenden Report because its somewhat dubious clauses only have influence amounting to the enactment of the Sexual Offences Act 1967.

Common law principle

That consent is a valid defence to common assault.

 Reg v. Coney (1882) 8 Q.B.D.

This decision held that a prizefight in public was unlawful – actual bodily harm or serious bodily harm is unlawful, notwithstanding the consent of those involved.

Cave J. argued that a blow not struck in sport and is likely or intended to do corporal hurt is an assault, unlawful and a breach of the peace, thus the consent of the person struck is immaterial. Cave J. said at p. 507

“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it.”

Stephen J. added that consent is also not a defence when the activity is injurious to the public as well, and it is not in the public interest that the lives of the prize-fighters be endangered.

Rex v. Donovan [1934] 2 K.B.

This held that a private beating amounting to common assault for sexual gratification is unlawful. All of the judges disagreed with the reasoning in this case because of the common law principle stated above. Therefore, the decision in R v. Brown seems to overrule this case, thus changing the law. Yet this case may have importance in that it argues the offence is irrespective of consent.

Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715

This decision held that a fight between two consenting young men was unlawful because it was not in the public interest. Indeed, Lord Lane C.J. said at p.719

“It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason…it is immaterial whether the act occurs in private or in public.”

The position of the law before the case was roughly straightforward. However, there was a lack of clarity in the decision of Rex v. Donovan, which contradicts the common law principle for no good reason. But Coney and the Attorney-General’s Reference are both consistent with each other and the common law principlewhich leads me to disagree with Lord Mustill’s historical summary of previous cases that he asserted were inconclusive. Coney posits that actual bodily harm or worse cannot be consented to, and also adds that consent is not a defence when the activity is injurious to the public; the Attorney General’s Reference concurs on the point of public interest too.

Thus the decision in Brown affirmed the common law principle that common assault can be consented to (this underlies the court’s rejection of Donovan). The court’s decision also confirmed Coney as it states that actual bodily harm can only be consented to with good reason; in special circumstances such as boxing, which is properly regulated (Queensbury Rules), and conducted (with a referee and medical practitioners close by). Furthermore, the Court also reasserted the public interest measure, thereby also confirming Coney and the Attorney-General’s Reference.

It follows that this decision changed the law in Donovan and added the special circumstances exception to the charge of actual bodily harm or worse: it can be consented to with “good reason”.

Critical commentary

I believe that the court did reach the right decision for the following reasons:

  1. The court’s decision is consistent with earlier cases

As explained above the court’s decision is consistent with the ratio in both Reg v. Coney (1882) 8 Q.B.D. and Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715.

The line of actual bodily harm was chosen because it is consistent with the Attorney General’s Reference, not because it was easier to differentiate between no injury and some injury; it differentiates between actual bodily harm and common assault, the latter being less serious. The dissenting view that the standard of harm should be grievous bodily harm is based on no authority.

Furthermore, the court rightly holds that these acts were malum in se, and the issue of consent is not relevant. Consent is a defence in acts where there is a good reason. Boxing is permitted since it is conducted with rules, doctors and referees. The unregulated, drug-incensed activity of the appellants is unsafe and thus not a good reason.

Lastly, whilst horseplay (which has no intent to harm) has been seen as a good reason (Reg v. Bruce (1847) 2 Cox C.C. 262, Aitken [1992] 1 WLR 1006, Jones (1986) 83 Cr App R 375), I would hold that this reasoning is flawed and that does not have any impact on the present case. It is for Parliament to decide on the exceptions, such as horseplay and, in time, sado-masochism.

  1. The court is right to accept the use of the Offences Against the Person Act 1961 – it is not inappropriate

Firstly, it should not be relied upon that consent was not mentioned in the statute, as it is usual for such acts to use absolute language and leave definitions to the court[1].

Secondly, if it were construed otherwise the result would be that the infliction of serious physical injury should be exempted from the act, which is the very thing the act was enacted to protect against. The act is directed at protecting the person of individuals.

Lastly, it should be noted with care that legislation should be used to commit an act even if that legislation was not originally intended to prosecute the act. One needs only to remember the countless judgments of Lord Denning or the recent upskirting scandal involving Gina Martin, where the Metropolitan Police reopened the investigation of the basis of an old common law against ‘outraging public decency’.

  1. The court was not moved or influenced by personal morality

The court clearly acted in line with previous cases and the presence of disgust to these acts (which all judges shared) is the most humane and just reaction, and a judge must be humane and just. Furthermore, since all judges were repelled by these acts the argument that three were repelled so they dismissed the appeal and that two were repelled so they allowed the appeal is contradictory and made without proof. The oft-quoted statement of Lord Templeman that “pleasure derived from the infliction of pain is an evil thing” is in fact perfectly justifiable and sensible, and it is perfectly reasonable that a judge should pass moral judgement (provided it does not inform his judgment) in order to uphold societal values.

  1. The court was right to interfere with private affairs

This case clearly demonstrates the limits to the autonomy principle in favour of the welfare principle. Autonomy left unbound soon becomes no autonomy. As Cicero said, “we are slaves to the law so that we may be free”. Paternalistic laws, even those that are not utilitarian in nature, are often proclaimed as life-saving. One immediately recalls the law requiring each person to wear a seatbelt in a car.

Overall, I find the court’s decision to be satisfying and their view that Parliament should legislate on this matter as entirely appropriate and in line with parliamentary sovereignty.

[1] L.Q.R. 1993, 109(Oct), 540-544

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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Legal Reform: Social Norms and Technology

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In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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