Originally Posted by senksiang90
Before we ask whether law is supposed to punish people or not, let us ponder over this first:
Do you think the parliament deserves all rights to legislate the law in the country?
Example of cross of law and morality can be seen is this case :
After reading this case, what do you think? Should law or ethics prevail? For me, sacrificing a dying life for a potential life is better than letting both die slowly and in pain. Hence, I feel in this context, law overrules ethics.
So, my conclusion is law is indeed important but whether it should be legislated by the parliament, I don't think so. It should be done by the courts as they are dealing real-life situations and not just a mere black and white A4 sized paper.
[[Even before I clicked on that link I just KNEW it was going to be the "Re A" case. Heheheheh.]]
I don't really understand your point though. Maybe it's because I had a long day, or I'm just dumb, but I don't seem to be getting it. What does Parliament legislating have to do with anything about the issue at hand? What's the point of asking if Parliament should have the right to legislate? Or the point of bringing up the identities of the MPs. We could have the Dewan Rakyat comprising solely of lawyers and we could still have controversial abortion and suicide laws*.
If there's a point to this that I'm missing, please enlighten me. =)
Now here's my opinion. To answer youngyew's main question which he has helpfully bolded in his post, I'd say law is a bit of both -- to deter and to maintain what's right. We have civil law and criminal law, both have their own roles to play out.
About the "ethics" issue, I could spend the next three hours typing out a horrendously long essay explaining the substantive definition of the rule of law
, which in layman's terms means that laws must preserve natural justice and must not have tyrannical content, etc. But that would be going into extremely technical theories and most non-lawyers/law students are going to hate me. Also, I hate writing long, philosophical essays.
So my brief answer is, yes. The law should reflect ethics [and it does actually], though only to the extent of preserving the harmonious balance of society. So my opinion basically echoes Al-Bert's. After all, what is harmonious is basically what the society deems to be morally acceptable at the moment.
All right, I suck at writing long essays of an extremely theoretical nature, so let me go into specifics, where the real meaty deal is. HOORAY ETHICS.
Let's talk abortion, and then let's talk the Re A
case, which senksiang90 has so kindly provided us with.
Firstly, did you guys know that in the eyes of the law [well, British law at least], a baby in a mother's womb is not considered a "living being" until the mother has given birth to it? So basically you can stab a pregnant woman's womb, killing the fetus, but you can't be charged for "murdering the baby". You can be charged for harming the mother, yes, but not killing the baby. So there's your root of the problem. In the UK, abortion is not illegal. You can't say the law is "unethical" because it "allows the killing of innocent lives". The real issue here is, the law technically isn't
allowing the killing of lives because a fetus, in definition, isn't alive to begin with.
So what I'm saying is, the real change that is needed is for the law to formally recognize a fetus as a living being, not just a one step ban of abortion. Make it a crime to kill a baby when it is still in its mother's womb. Only then can we start demanding for abortion to be banned.
Senksiang90, about the Re A
case, on the contrary, I feel that in that particular case, it is the ETHICS which overrule the law, not the other way round. If you noticed, Re A
was one of the rare cases in which necessity as a defence was recognized. Conducting the separation which would kill Mary was justified and legally allowed because it was "necessary" to allow Jodie to live. And the courts have had a loooong history of rejecting any defences of necessity, even though the defendants had pretty strong cases to justify their actions.
Dudley and Stephens
was a case in which the defendants were found guilty for murder after they killed a sick boy and ate him out of "necessity". They were stranded on a boat for many and were close to dying of starvation. Had they waited another four days before getting rescued, they would have died. The courts still found them guilty.
Another example is the case of Kitson
, in which a drunk man who fell asleep at the back of his car, woke up to find his car rolling down the hill, and steered it to the side to avoid injury, was convicted of drink-driving.
The defendants in both these cases had strong reasons for doing what they did, yet necessity was still not recognized as a defence. In these cases, the laws prevailed over ethical issues. So I'd say Re A
was an exception, in which ethics had a rare field day in the legal arena. If, in Re A
, the laws were to overrule ethics, the judges would basically have said, "Don't separate the twins, that's strictly murder by law. We don't care if both will end up dying."
By the way, youngyew, going back to the question of insanity...the legal take on this is that a defendant can plead Not Guilty By Reason of Insanity, but that's usually not advisable, because if you're found to be NGRI, you'll be sentenced to be under clinical observations. They're not going to let you off scot-free like that. So yes, he CAN kill you because he's "insane", but he's definitely not going to enjoy his life after that! This is why for relatively minor offences, people tend to plead guilty rather than NGRI, because they'd rather sit in jail for a few months or pay a fine than to go through all the pressures and confinement of being a "legal nutcase" under hospital observation. There isn't much of a dilemma about that, I guess.
[[DIGRESSION ALERT]] What we SHOULD be more concerned about is the legal definition of "insanity". Did you know that the legal and medical definitions of "insanity" differ quite a bit? In law, the defendant "must be suffering from a defect of reason caused by a disease of the mind". And this "disease of the mind" is extremely broad. In R v Sullivan
, an epileptic patient who had a seizure and accidentally kicked someone, thus injuring them, had been deemed to be suffering from "a disease of the mind" and was thus labelled as INSANE. Is it fair to have an epileptic patient being subjected to mandatory clinical observation and being labelled as "insane"? This certainly isn't very just! [[End digression.]]
[[*For the life of me, I can't understand why attempted suicide is illegal in Malaysia. WTF happened to respecting human autonomy? Also, this is the first time I've heard of an offence in which you'll be liable for ATTEMPTING to do it, but you won't be if you actually accomplish it [I'm sure not even Malaysian prosecutors are stupid enough to try to prosecute a dead man]. Sorry for the mild digression, but it's still somewhat relevant to the topic.]]
Okay this post is way too long so I'll shut up now and ramble more when there are more posts to reply to. Cheers!