Title: Morality and the Law-Torture Essay Example

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    Law
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Title: Morality and the Law-Torture

Morality and the Law-Torture

Executive Summary

Law and morality have always been seen as not having a clear distinction. This essay will highlight and discuss the difference between law and morality. It will also state the theories that surround the controversy on the meaning of law and morality. This will be done through providing solutions to the questions such as the relation between morality and law. Determination of how social values influence law making and what is the relationship between law and social order. On the issue of torture, this essay will clarify what torture is and if t is appropriate in the process of law making. Questions which will be answered are for example is torture legal and to what extent is it allowed and is it a moral issue or legal issue.

Introduction

Law and morality have always been treated the same by many people. There is a very unclear difference between law and morality. Morality has to do with doing right or wrong while law, on the other hand, involves rules and regulations formulated by an institution like a government (Dyzenhaus, Reibetanz & Ripstein, 2007). Laws are meant to govern and guard people to do the right thing according to what the state has defined as right and appropriate. When an individual breaks the law, there is a punishment for that. Punishment varies according to what kind of law has been broken. The punishment can be a sentence or a fine. In morality, there is no exact punishment that has been stipulated because morality varies according to societies (Raz, 2009). What might be wrong to one society might be right in another. In severe cases of going against moral rules, an individual who has committed the offence can be ex-communicated from the community. Some moral rules are the same as laws, for example murder. No community condones murder and no government or state law condones murder. Such an issue is what makes many people think that there is no major difference between law and morality. There are terms that are used in law that also apply in morality.

There is a clear and very distinct difference between morality and law. An immoral issue can pass as a law for example, abortion. According to McConvill (2006), abortion is seen as a wrong thing to do in many communities while it was passed as a law. A law may or may not reflect on the communities moral views but it will still pass as a law. Duxbury (2000) observes that there are controversies on the issue of some immoral rules being passed as laws. The main argument is that majority of the immoral rules which pass as law usually go against human rights which is morally wrong and therefore they should not be passed as laws, for example the racist laws of the Nazis in Germany (Green, 1970). Other examples are laws such as the one introduced in the Northern Territory in 1996 which stipulated the allowance or provision on euthanasia-medically assisted death. Such a law goes against human rights and also immoral. Luckily the law was overruled (Amarasekara & Bagaric, 2002). People’s views and opinion vary on whether a law is right or wrong and how wrong it is. Whether there is a duty to obey the law is a question of personal morality and not that of the law. Some people may feel that there is no need of obeying a law that goes against human rights while others may object and feel that the latter is not true. Duty can either be legal or immoral duty and the issue of whether there is a duty to obey the law if based on legal part duty and not moral responsibility.

Law greatly affects morality of a certain community or country. Most of the laws regarding crime generally get ideas from the community of if something is immoral or not. There are laws that are legally wrong and are categorized as crimes and are morally wrong like for example rape while there are others that are a crime but are not morally wrong like for example carjacking. Although morality varies with opinion and views, the law of a community influences the morality of that particular community. For example the laws regarding sexual harassment and racism are formulated in order to change and influence the opinion of the community on the matter-so that the community can sees them as vices and morally wrong (Shavell, 2002)

Law can be categorized into two major sections, which are public and private law. Private law is meant to resolve cases like disagreements in contracts, defamation of an individual’s character, liable, slander, child custody, divorce, trespassing and damages of property and personal. A private case is based on discussions and agreements that are done peacefully and usually in private with involvement of the concerned parties only (Cane, 2002). The main function of civil law is the provision of a legal solution in problem solving. Private law can be based on state statute or a ruling made by the court. Private law has different types which have widely been studied and discussed, for instance consumer law, law of tort, international law among others. Parties in a civil case include the plaintiff and the defendant. The plaintiff is a person or company that has been treated unfairly and is seeking a solution or justice in a civil court. It is the plaintiff who has the duty of proving that he has been treated unfairly. A defendant is a person or company that the plaintiff claims treated him/her unfairly. Terms like fair, dishonest, and proper. Ideas and situations in moral cases have been integrated and used in law cases and making judgments. Most people especially the ones with a strong faith in Christianity are afraid of committing what they think is wrong and morally inappropriate than breaking a law because they believe that if you go against any moral norms, you are going against God’s wishes (Bauman, 1999).

Public law is the law that punishes individuals who have committed a criminal act. It is referred to public law because it governs the general public and not a specific group of people or individual. Criminal acts are part of public law and are usually committed against the state or government, individual or company. Most penalties and punishment for breaking public suits is a jail term or sentencing (Gross, 2007). Examples of public law are criminal, environmental, electoral, industrial, administrative and constitutional law. Examples of criminal acts are murder, possession of drugs, fraud, kidnapping, and abduction, violent crimes like acts of terrorism and parole probation. Public law is based on three main important functions. It helps in establishing the central institutions of law and government together with a framework of rules and regulations which give power and authority or restrains the power to those institutions. Public laws also create and manage the relationship between individuals and institutions of authority and in power like for example the government. In addition to the two importance of public law, it also addresses and solves issues that affect the society in general. There are other minor types of law which are procedural and substantive law. Procedural law includes limitation period, evidence and double jeopardy. Substantive law includes negligence, some criminal law and copyright.

Classification of law is very important because it enables people understand what kind of law they are dealing with (Gross, 2007). There are other types of law which fall in the both categories of law in that they are in both private and public law. An example of this sort of law is family law. Family law relates to an aspect of ‘private’ relationship and so it falls under private law. Family law can also be categorized as criminal law because it treats people as part of a ‘class’-those who are married and children born in marriage. The law does not operate on its own, it has integrated and interrelated system with overlapping rules and regulations. This is the reason why all issues related to law are called legal systems.

Law is not only for the enforcement of rules and regulations; it is used as a major factor which enables the promotion of stability and order in a society. For any group to survive, law and order has to prevail. Peaceful, social and comfortable co-existence in a society depends on obedience to law. Law is works as a way of producing social order (Croce, 2012). Legal rules operate three distinct ways which are it creates restrictions and prohibitions and imposes obligations for individuals in a society, law gives people rights and liberty and it also protects those rights and liberties. In addition to this the law, creates and establishes reinforcement procedures to be followed. It establishes a good and peaceful social system for every member of the community. (Luhmann, 2004)

Torture against every human right or liberties of an individual

Discussions and debates on whether torture should be used or not have always been forthcoming. There are people who believe that torture goes against human right and does not consider the values, opinion, belief or interest of the individual being tortured. It takes away the value of human life and replaces it with the value for information (Gross, 2007). Other people think that if torture is used to extract information which can be used to prevent major crimes like terrorism, then it is justified. Torture is morally wrong but in other cases it can be viewed as legally correct. Legal ban on torture is important when torture is looked as an activity that takes away an individual’s dignity, values and the fundamental human right. The use of torture in extreme situations does not prevent the ban from being set.

Having a ban on torture will help people understand that torture is legally and morally wrong but might be used in severe and crucial circumstances where information is needed that can prevent a catastrophic and inevitable thing from happening (Rejali, 2009). While advocating for an absolute ban on torture, an individual should view torture as a situation that has nothing much to do with morality but as an issue that directly affects the human psychology. There are psychological pressures that a human being cannot handle and not forgetting the bodily harm that an individual can get as a result of torture (Gross, 2007). The absolute prevention or ban of torture in catastrophic scenarios is indeed a selfish and evil act even more evil than torture itself. Letting more people lose their lives because of one individual is absolutely wrong. In cases of national security, those in authority in the government have the responsibility of using interrogative torture to get information that can be used to protect the state. The government has a responsibility to its citizens to protect them from any security threats by use of any form of method that can ensure their safety. They should apply conditional ban which only allows the use of torture based on valid circumstance that it will help in solving catastrophic situations (McMahan, 2005).

However, most people who advocate for absolute ban agree that catastrophic cases can pass for exceptional treatment but they still argue that the nature of the exception can vary and it will be a challenge in to determine to what extent a situation be deemed as exceptional. Further arguments on whether the situation calls for suspension or qualification of moral norms or whether the norms will apply to the exceptional circumstances. The main aim of these debates and discussions is to determine the relevance and significance of exceptional cases.

Conclusion

Society dictates and demands the obedience of law. Law have been established and formulated to protect and ensure the peaceful and comfortable co-existence of the community members. Morality and law work hand in hand. They are interrelated. Morality affects laws while laws guides and ensures that a community is morally upright. Torture on the other hand, can either be a moral case or legal case depending on how one views the issue. As long as every individual follows the laws that have been stipulated and are morally upright, every community will live peacefully, comfortably and in a harmonious way.

List of references

Amarasekara, K. & Bagaric, M, 2002 Euthanasia, morality and the law, Peter Lang, New York.

Bauman, Z, 1999, ‘On Universal Morality and the Morality of Universalism’ in Christian Lund (ed) Development and Rights: Negotiating Justice in Changing Societies, Portland Oregon: Frank Cass, London, pp. 7-18.

McConvill, J, 2006, ‘Time to abort the law’, On-line Opinion – Australia’s e-journal of social and political debate, 24 February 2006 http://www.onlineopinion.com.au/view.asp?article=4188. Retrieved on 12th September 2013.

Cane, P, 2002, Responsibility in Law and morality, Hart Publishing, New York.

Croce, M, 2012, Self-sufficiency of Law: A Critical-institutional Theory of Social Order, Volume 99 of Law and philosophy library, Springer, London.

Duxbury, A, 2000, ‘The International Law Implications of Australian Abortion Law’ in UNSW Law Journal, Vol. 23 (2)

Dyzenhaus, D, Reibetanz, S, M, Ripstein, A, 2007, Law and Morality: Readings in Legal Philosophy, University of Toronto Press, Toronto.

Gross, O, 2007, ‘Torture and the Ethics of Responsibility’, Law, Culture and the Humanities 3(1): 35-54.

Green, L, C, 1970, ‘Law and Morality in a Changing Society’, The University of Toronto Law Journal 20(4) (Autumn): 422-447

Honore, T, 1993 ‘The Dependence of Morality on the Law’, Oxford Journal of Legal Studies 13(1): 1-17.

Luhmann, A, N, 2004, Law as a Social System, Oxford Socio-Legal Studies Oxford University Press, London.

McMahan, J, 2005, ‘Torture, Morality and Law’, Case W. Res. J. Int’l L 37: 241

Peters, E, 1996, Torture, University of Pennsylvania Press, Pennsylvania.

Shavell, S, 2002, ‘Law versus Morality as Regulators of Conduct’, American Law and Economics Review, Autumn 2002, 4(2): 227-256.

Raz, J, 2009, The Authority of Law: Essays on Law and Morality, Oxford University Press, London.

Rejali, D, 2009, Torture and Democracy, New Jersey, Princeton University Press.