I Can Kill You - I am Insane

[youngyew]

While ReCom is back to its scholarship frenzy period, let's inject some non-academic element back into this forum.

What's with the title of this thread? For starters, this is apparently a famous line in the movie 15 Minutes. It highlights an important dilemma in law - just how do we sentence criminals with mental derangement? Should they not be punished at all since they can't be held responsible for their acts? Or (gasp) should we imprison them longer so that they can't harm more people?

I would like to invite people to ponder on what is the role of legislation and its enforcement in a free society. Is law supposed to punish people for their crime, to deter crime, or simply to maintain what is right? And along the same line, does law, and should law reflect ethics? And to what extent?

Some time ago I noticed that many people who posted in the rape thread have expressed supports for castration or some inhumane means of punishment for rapists. The justification for that was predominantly "so that they get punished badly for their crime". But at the same time, there have been little consideration about what will happen if such laws are implemented, like how it will likely affect the murder rate of the rape victim, or how it will reflect on the whole incidents of rape cases in the community. What many people only cared about is how the law can help them do whatever they can't do - to exact revenge.

Meanwhile, the other aspects of law that's often contentious is how well-aligned it should be with moral beliefs or ethical framework of the society and the different people who live in it. An obvious example would be abortion laws. For many people, especially the religious ones, their first knee-jerk reaction to the legalisation of abortion is simply NO WAY. For them, abortion is killing, killing is always wrong, so there's no way for us to approve it in law. But upon deeper inspection, there is a convincing statistics that legal status of abortion does NOT affect abortion rate in a country (sorry don't have time to dig that up but I am pretty confident this is the case); but by banning it we are effectively making people abort in their backyard and killing the mums. So in this case, many people make a case that regardless of your personal belief, abortion should be legalised based on the consequentialist reasoning alone. In other words, you do more good than harm by legalising abortion, as hard as this fact is to swallow.

The two examples are only tip of what I believe is a gigantous iceberg of dilemma in law and ethics. I am keen to hear what other people think about this topic.

[senksiang90]

Originally Posted by youngyew

Is law supposed to punish people for their crime, to deter crime, or simply to maintain what is right? And along the same line, does law, and should law reflect ethics? And to what extent?

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?



Well, as we all know, in many countries-Malaysia included, there is a doctrine of separation of powers between the parliament and the courts. It is established that there should not be any party representing both bodies at the same time. This is because it is understood that the Parliament MAKES the law and the courts APPLy the law only. Is this fair? After all, Parliament are just parties given power by the citizens to rule the country and they don't actually have the specialty and technicalities required in handling most of the criminal and civil cases in the country. All the parliament do is just read the paper works and act according to the conscience of what a normal man will think about-then there's a ballot of course- and make the law. So, it can be seen that many laws legislated are actually made by lay(non-law background) personnel.

So, this brings us to the next question, what are the aims to legislation. Obviously there are a few aims. One is to deter the public from any misbehaviour or inappropriate conduct which is against the norm of the society. Then there's of course retribution('an eye for an eye', 'a tooth for a tooth', 'a life for a life'), reparation(compensate the victims) and also the rehabilitate the society(especially to drink-drivers and drug addicts). Hence, it is obvious that law is important. Some it acts as an element of revenge, while the others it is for their own self-benefit after all.

Next we ask ourselves if law should reflect ethics. This is a very interesting question to be debated. For me, to a certain extent it does. For example, abortion of baby. It is illegal in Malaysia. It is against all moral and ethics as we all know that every living being deserves to live. However, when it comes to law, calculating all aftermaths and outcomes is important. If this baby born, how will the mother treat it if the mother herself did not even intend to have it as she was raped? Or its mother is not ready and once born might abandon the baby. Hence, this is indeed a very general and widespread theory. Example of cross of law and morality can be seen is this case :

http://www.daat.ac.il/daat/kitveyet/...sh/rosen-1.htm

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.

[Al-Bert]

Originally Posted by senksiang

For example, abortion of baby. It is illegal in Malaysia.

It's legal if the mother's life is at stake. And I have been reading somewhere that Malaysia government have been considering of amending the law to permit the abortion for rape and incest victim....

Most laws are established based on moral and ethical consideration. Thus in my opinion, law is indeed reflecting the ethics... Amendment of law would be made if public's ethical view has changed.

[Glassylicious]

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 :

http://www.daat.ac.il/daat/kitveyet/...sh/rosen-1.htm

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. =)

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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.

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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."

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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.]]

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[[*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!

[henry_yew]

I'd love to read up the articles linked in this thread, but due to the constantly poor Internet connection here in UTP, you'll have to pardon me for bypassing all of the articles.

The question of whether law should be used to punish people for their crimes or deter crimes is indeed a very intriguing issue to me. As far as I am concerned, the law can be used to do both. But if I am required to choose only either one, then I am more of opinion that law is to deter crimes. I know that in law, it is not uncommon to always see rules that end with a penalty if they are not obeyed. In that view, many would perceive that laws are used to punish people for their crimes.

However, if at first you know the law and the penalty that comes with it for being an offender, would you not think twice about breaking the law then? And if you fear the penalty, would that not be sufficient to deter you from committing crimes (save for some other stronger external factors)?

But in my opinion, laws should be made equal to every individual, even people who are suffering from mental derangement. Why should people with severe mental problems be let off the hook and allowed to roam around? Very honestly, if it is necessary that we imprison them for a longer period of time to keep them from harming other people, is that such a bad thing to do after all? From a utilitarian point of view, what is one mentally deranged person compared to the tens of people that they may harm? Even though they do not have the ability to realise what they have done, the law should not altogether exempt the mentally deranged individuals from the penalty altogether. Perhaps a lighter sentence, such as to have them imprisoned and kept away from harm's way, is good enough.

There's no point holding the mentally ill individuals responsible for what crimes they have done, for it is most likely that they are not aware of what they have done. However, just because they cannot be held responsible does not mean that they should be released into society just like that. While keeping them in captivity, the government (if they can afford it) might opt to treat the mentally ill inmates through medical measures, and for all we know such people may turn out to be normal again. It is not unheard that mentally ill individuals can become normal again through some medical treatment.

On whether or not laws should reflect the ethics of a society, well, that would be more difficult to judge and assess because the ethics differ from one society to another. What we deem as unethical may not be so for another society. At the same time, what is deemed as ethical and ordinary may actually bear dire consequences or bring about some shocking revelations. (Head-hunting may not be wrong to a certain group of people, but to others it is something shocking and unethical. Now, if these two groups of people are the lawmakers, who gets to draw the line?)

I cannot be sure if there is a grey area when it comes to law. What I know is that people tend to twist and turn the words of the law when the need arises, thus poking through a lot of loopholes every now and then. This speaks for itself that no law is perfect and no law has a single true interpretation.

But the most important thing for me is that whatever I do, I make sure that I get to benefit my conscience.

[senksiang90]

Originally Posted by Glassylicious

[[Even before I clicked on that link I just KNEW it was going to be the "Re A" case. Heheheheh.]]

of course there are other cases stated in ELS but i guess this case was exceptionally interesting.


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*.

Well, my argument is simple. Given the fact that the parliament MPs never really studied law before, do you think they should be the one making the law? They don't go to court to hear real-life cases, they make legislation so slow that it needs to be delegated at times. Okay, to let u understand further, let me put you in this situation. You know a doctor very well and u undergo treatment with him for years. Suddenly, u have to do a surgery for ur heart but ur doctor specialises in orthopedic. Will you give him the power to make a surgery on u? Simple as that.. This is what my argument about MPs are democratically selected people-yes. but is it sufficient enough to be a case for them to make our laws? I don't think so. Because most of them-except the likes of Karpal Singh of course,-but he's a third-class 'honour' anyway- have never every studied law in their life before! I hope u get my point now..

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.

Cheers!

I seriously doubt the part when u say 'defendant actually had a strong claim' as what the defendent had relied on at that time was pure 'Roman Catholicism'-is there such word?- They were at that time also are in financial difficulties and such operation will cause a fortune as well as having feed and raise a baby in such circumstances is really hard.. So, I particularly disagree with u in this.

However, when I think of it, the court is actually in breach of Article 2 and 8 of the Human Rights Act 1998 which is the right to life and the right to respect for private and family life, but let's not touch on that now..

Well, this is what I think of course. Fight me back Glassylicious cuz I seriously love conversations like this.. double Cheers back to you!!!!!!! )))))

[Al-Bert]

Originally Posted by henry_yew

But in my opinion, laws should be made equal to every individual, even people who are suffering from mental derangement. Why should people with severe mental problems be let off the hook and allowed to roam around?

Yeah, they should be charged for unintentional killing as well.... Plus, it's possible for a normal people to pretend to be insane one since there's no laboratory test that could 100% confirm the insanity of an individual.

Originally Posted by Glassylicious

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.

For me, communal rights and responsibilities are more important than individual rights. Suicide brings traumatic impact to those who care. Jail punishment for attempted suicide is essential in preventing second attempted suicide or maybe provides a plenty of time for them to reconsider the logic of committing suicide.

[Glassylicious]

Originally Posted by senksiang90

I seriously doubt the part when u say 'defendant actually had a strong claim' as what the defendent had relied on at that time was pure 'Roman Catholicism'-is there such word?- They were at that time also are in financial difficulties and such operation will cause a fortune as well as having feed and raise a baby in such circumstances is really hard.. So, I particularly disagree with u in this.

However, when I think of it, the court is actually in breach of Article 2 and 8 of the Human Rights Act 1998 which is the right to life and the right to respect for private and family life, but let's not touch on that now..

Well, this is what I think of course. Fight me back Glassylicious cuz I seriously love conversations like this.. double Cheers back to you!!!!!!! )))))

1. Yes, you made your argument about why it is doubtful that Parliament should be making all our laws, and you have reclarified that in your previous post. MPs may lack legal expertise, etc. We got your point from the very first time you mentioned it. But you didn't answer my question. What does Parliament legislating have to do with the purpose of law, and laws in relation to ethics? Like I said, you haven't actually properly linked the two together.

Also, IMO, even if we only allowed lawyers or legal officers to be MPs, it may not necessarily change the quality of the laws which are enacted. It may also lead to legal elitism. I think the system right now is fine. After all, we do need a wide variety of people with different perspectives, to be able to make laws for the people. Remember that we're not making laws for the lawyers, we're doing it for the people. The lawyers may not necessarily understand the particular situations which certain groups of people are facing, in making laws directed at these target groups, simply because it may be difficult to truly put themselves into these people's shoes. This may lead to inappropriate laws, etc. What Parliament needs are people from a variety of professions and experiences, to better contribute to the enactment of fairer and more suitable laws.

2. Oi, which defendants are you talking about-lah? XD You talking about the appellants or defendants? The doctors or the parents? I was talking about the doctors, and it seems as though you are talking about the parents [they are the appellants! Not the defendants!], so sorry if there has been a misunderstanding. Also, your statement is kinda contradicting...you say you doubted the parents had a strong defence, yet right after that you started giving defences on their behalf. o_o Er, uh. Either way, my point still stands. Re A was a case in which ethics trump the law.

3. Article 2 could very easily be argued both ways. If you want to nail the court you might have a better chance with Article 8, though I'm not sure if the doctors' duty of care overrides everything.

4. Also, guys, you ought to read my first post. I said that people who are found not guilty by reasons of insanity aren't released scot-free. They will be subject to mandatory clinical observation and likely confinement [read, in a mental hospital!]. For this reason, some people actually prefer to plead guilty rather than fake insanity for certain crimes, because it's just not worth it.

5. To Al-Bert about suicide. You do bring up a good point there, but don't you think making a blanket cover is a bit too much? Some people might not actually have people who care about them. No known relatives, friends etc. Also, don't you think this is kind of an overprotective "nanny law"? Suicide isn't the only decision a person could make that would traumatize the people around them...I could also start going on about the point and concept of criminalizing an act, and how suicide doesn't deserve the label "criminal".

And what about euthanasia? Oooh, controversy!

[eve88]

Al-Bert : Hm, as fair as jail for attempted suicide is concerned... it may be counterproductive - cuz ppl that attempt to commit suicide has underlying problems - jailing them doesnt do anything to settle those, and may push the person thinking even further along the lines of killing themselves. And do remember that people who are attempting suicide aren't entirely rational (especially at that point in time)

Re laws being made equal to every individual : To a certain extent, yes - but they are cases where this does not apply. It is absurd to demand responsibility (to uphold the law) from people who are unable to comprehend it - like those with diminished mental capacities. And juveniles are treated differently (for the same crime) compared to adults - because we do acknowledge that we cannot demand the same level of responsibility from a kid compared to an adult.

[Glassylicious]

Originally Posted by eve88

Re laws being made equal to every individual : To a certain extent, yes - but they are cases where this does not apply. It is absurd to demand responsibility (to uphold the law) from people who are unable to comprehend it - like those with diminished mental capacities. And juveniles are treated differently (for the same crime) compared to adults - because we do acknowledge that we cannot demand the same level of responsibility from a kid compared to an adult.

Yep yep. This is why those suffering from an abnormality of the mind can offer the defence of "diminished responsibility", in order to get their murder charge reduced to manslaughter. Yep, you heard me. Retarded people only get their charges reduced, not withdrawn.

I think a common misconception is that it's easy to walk away from a murder charge like a free man. That's not quite true, given the fact that murder is likely one of the most, if not THE MOST, serious offence in existence.