Legal Theory Essay Example

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Why should the law compel these explorers as murderers? This is a fictitious case of the Speluncean Explorers which looks to me as a reality and the subsequent events make me consider the opinion of Justice Foster. Let us take a break for a second, the law of our land, that is; the so called constitution of Commonwealth which (Cane and Conaghan pp. 1099-1101) describe to be imperfect just like men who wrote it. It was a constitution by fallible men for the same men thus open to criticism and open for error and myriad interpretations.

Whether “murderers” of Whetmore are pardoned should not be a matter to worry about as much as whether or not the court must rule to convict them in the first instance. On papers as written by classical thinkers or our predecessors1, if laws which is now condemning explorers who could seldom save their lives without such critical decision must be set in stone, then realistically, the much our common sense can allow us to see is that those laws must be subjected to alterations to say the least. Talking of “realistically” I will thus embed my reasoning on the basis of legal realism. For the purposes of legal realism let us assume for a minute that Judge Keen’s ruling that these men deserve to be convicted was merely because his interpretation of law on paper convinced him that people like him have unquestioned mandate to determine whether or not there was violation of statue. Is he not becoming too simplistic for a case that will be even too complicated to modern magistrates?

Let me borrow some simple logic from (Zimmermann and Reimann pp. 709-37). They argue that the whole judicial process will be in disarray if the purpose of any criminal justice is only seen as a tool to punish a particular crime. Instead, they suggest that it should be used to implement justice, which to me is an objective and not as absolute concept as Judge Keen looked at it. While the statute in question Keen offers these explorers the protective power of the state, I am not going to be tempted to believe that what these judges were after is for Whetmore’s death to be avenged. Technically am having in mind that the statute, that is N.C.S.A. (N.S.) 12-A provides that «whoever shall willfully take the life of another shall be punished by death,»2 but again are we now assuming that “A killing in self-defense” can be excused? Let us take a break from modern judicial process and borrow a leaf from ancient legal wisdom from which we are proud of the now law of “Commonwealth”. Raymond (2009) explains that the ancient legal wisdom sometimes ceases to be irrational if a man breaks the letter of the law without breaking the law itself. To concur with Raymond and as legal realism, I believe that whether the law hanging these explorers is in judicial precedent or a statute, the fact still remains that it must be interpreted realistically in accordance with its evident purpose rather than emotion or prejudice.

If evidence purpose and realism is the order of the day then Keen and any other person agreeing with him will be compared to referees in a rugby or football pitch. We are not on a rugby pitch where rules are strictly followed and an attempt to break any results in unquestionable penalty. Therefore to my understanding, Keen believes that justice and lives of these explorers can be compared to any other game I have mentioned above. Outcomes of rulings such as his are far heavier than a trophy a blood that can be shed on.

If such ruling is anything to go by then am afraid our lives are in hands of the few who can do anything they want depending on how their mood swings are. And such systems even as dictated by “Commonwealth” will cease to be justice but domination. I don’t intend to sound pragmatic if I argue that the judges on the chamber have supreme power in our legal system to determine fates of these people. However, condemning then to death because pressure says so makes any other ordinary law enforcer believe they were afforded the power of God. I do not mention God to switch my allegiance to religious or moral perspective but trying to be realistic with the law. What Keen and the rest force us to believe is that at every given time law makers must anticipate every possible occurrence that could come under scrutiny or question; I do not think such law makers are already in existence.

The next point of contention is that if decision made by Keen is anything to be believed then why do we have jurors, lawyers or legal system? If we need to admit these professional must be present in court room then Keen is trying to make current and future generation believe that law started becoming absolute before being enacted; no chance for various interpretation, very accurate in the making and not even a bit had been miscalculated. If that is the basis Keen used to make the ruling then soon we are going to have what (Freeman pp. 957-68) describes as programmed computers to deciding if a statute had been violated or not. Where such programmes ignore logic and human reasoning and just equate the facts with a guilty sentence attached to such facts. It is very unfortunate to think that our legal systems have been reduced to clerical decision as Judge Keen made us believe. None of us is ready for such inevitable demise anyway.

The next point to talk about relates to the fate of these explorers vis-à-vis the law of Commonwealth. Why don’t we believe that there is more on this trial as opposed to fate of these four victims? Or why should we not stop believing that the law of Commonwealth that has been used to condemn these victims has ceased to pretend that it incorporates and uphold justice? I have asked these questions because the same law now pretends not to be aware that men can live together and sometimes make critical decision just to save lives. I am talking about men who co-existed miles away and decided to take a step in pursuance of an arrangement agreed by all of them including Whetmore who proposed it. Therefore if Judge Keen has the power to alert hangmen to go ahead and kill then we are still missing higher source for our legal order as described by Butterworths.3 Let me give practical example; we have about 15 work men who have perished in the process of helping about 6 trapped citizens. In this case, will it be realistic to ignore the fact that certified engineers and officers who send the workers had no clue that the operation was risky and could end lives of 15 at the expense of 6? Of course they had a clue but they made the decision with an assumption that the value obtained could outweigh the loss at the end of the day. So why do the Judges force us to believe that it was wrong for the victims to end a life to save four?

Let me argue on the basis of jurisdiction and territorial limits. Had Whetmore been killed even a mile beyond limits of Commonwealth will these judges still pretend that the same law was still covering them? The answer is definitely no because the same jurisdiction must be argued on territorial basis. (Clark pp. 1413-20) supposes that for the sake of government and our law and to the principle that dictates the same law, when decisions made are beyond our legal orders then we do not have a hand in it. Equally, these men made their fateful decision a thousand miles beyond the boundary that now claims to be in a position to determine their fates. If Judges did not consider this fact before condemning them to death then let us be sure that in future, people will make decision to survive or die as a result of such predicament and such decisions will not consider criminal code as stipulated in the constitution. I therefore believe that withdrawing decisions made by Judge Keen and others who share the same thought will not contradict our legal system but just confirm trends followed by our predecessors.

Let us apply analogous reasoning4 to the case of these explorers. Roger Whetmore, for the reason best known to him which I believe was optimism greater than the rest participated in the scheme by carrying the dice, should not be sympathised with. No matter how this case is approached, defendants are innocent of the crime of killing Roger Whetmore therefore this conviction should be dropped.

Works Cited

Cane, P. and Conaghan, J. Sociological Jurisprudence(eds). New Oxford Companion to Law. Oxford: Oxford University Press, 2008, pp. 1099-1101.

Clark D.S. (ed) ‘Sociology of Law’ Sage Encyclopedia of Law and Society: American and Global Perspectives. Los Angeles: Sage Publications, 2007, pp. 1413-20 (vol 3).

Freeman, Lloyd’s Introduction to Jurisprudence, 8th edn, London: Sweet and Maxwell, 2008, pp. 957-68.

Raymond Wacks. Understanding Jurisprudence: An Introduction to Legal Theory. Oxford University Press. 2009.

Zimmermann, R. and Reimann, M. Comparative Law and Legal Culture (eds) Oxford Handbook of Comparative Law, Oxford: Oxford University Press, 2006, pp. 709-37.

‘Introduction: Classic Traditions in the Sociological Study of Law’. In Sociological Perspective on Law Vol 1. Aldershot: Ashgate, 2001, xi-xxii.

‘Jurisprudence and Sociology of Law’ in W. M. Evan (ed), Sociology of Law: A Social-Structural Perspective. New York: Free Press, and London: Collier-Macmillan, 1980, pp. 21-29.

The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. London: Butterworths, 1989 / Philadelphia: University of Pennsylvania Press, 1992. xi + 277 pp.

4 ‘Legal Effects and Moral Meanings: A Comment on Recent Debates on Approaches to Legislation’ in N. Zeegers, W. Witteveen and B. v. Klink (eds) Social and Symbolic Effects of Legislation Under the Rule of Law. Lewiston NY: Edwin Mellon, 2005, pp. 339-58.