Essay/Term paper: Law and morality

Essay, term paper, research paper:  Politics

Law and Morality

It is not an everyday occurrence that someone must decide the fate of another's
life. The dilemma of making a decision that someone must die in order for the
others to survive, can obviously be troubling. The process in which the
termination of one's life may be easy to make, but to justify that decision is
the most difficult one. This paper is given a situation in which a decision of
taking one's life is essential. The situation is that a nuclear war has occurred,
which has destroyed most of the centres of civilization. There are five people
that are that have escaped death by finding their way to a nuclear bunker. These
five people consist of a pregnant woman; an old man, who is a retired judge; two
teenagers - a fourteen-year-old boy and a sixteen-year-old girl; and a young and
healthy woman who is a doctor. They all have been there for fifteen days and
they must remain there for an additional fifteen days before they can be rescued.
The problem is that although there are five of them in the bunker, there is only
enough food for four people to survive for the remaining fifteen days. Rationing
the food will not be of any use, because all will die with such a plan. The only
way for most of the survivors to live for the next fifteen days is for one to
die. Somehow they have contacted an outside source to advise them on the
questions of "Who shall die?", and "How should the decision of choosing the
person be carried out?" These are all very difficult questions to answer, but
something must be done. It is unlikely that someone will voluntarily allow
someone to kill them so that the others may live, that is why another form of
decision making must be allowed. The best way to do so is probably by that
outside aid to suggest that they try drawing lots. For example whoever pulls the
shortest straw is the one who dies. With no time to procrastinate, this would
seem the most time efficient and fairest way to choose who will die. Of course a
reason must be provided to the person who had drawn the shortest straw, and that
is the objective of this paper. This essay will explain how the decision will be
made that will ultimately take one of the survivor's lives to save the remaining
four people. From that explanation of the decision made, it will attempt to
justify it. This paper proposes to explain and justify the decision by using
legal tools such as Law and Morality, the Meta Rule, and The Doctrine of
Necessity. The advice provided on how to carry out the unfortunate death of an
innocent person may not be a "right" one, but perhaps it will be legally and
morally justified.

Law and morality play a large role here, mainly because there is a legal issue
and a moral issue associated with the predicament. The reason law has a part in
the situation is that after the decision is made, it will be examined legally
and must be accountable for its consequences. Morality has its place too,
because many will find it morally wrong to take one's life despite any
justification.

....there is some connection between law and morality, but the two are
clearly not identical. First, morality is only concerned with right or wrong,
with the good and evil; law is concerned with lots of things on which there is
no right and wrong - procedures for land registration, incorporation and so on.
Second, morality is to some extent uncertain and a matter for each individual,
law tries to be objective, written down in black and white and there for all to
see. Third, morality often leaves things vague and subject to general principle,
law goes into specifics.1

From that description of law and morality, it is obvious how they relate
to the issue here. When the time comes for one of the five people in the bunker
eventually to die, it must be legally justified. The reason for this is that
murder is illegal, unless legally justified.2 On the other hand, reasons for the
killing must be provided to put to ease those who question the dilemma in
accordance to morality. Since law and morality are equally important and both
are evenly delicate when dealing with this issue, advising the survivors on what
to do will not be easy. Pleasing everybody is impossible, whether it is examined
from a legal viewpoint or a moral one. However, if the situation is analysed
with both the law and morality issues in mind, there may be a chance that many
will see some sort of vindication behind the decision to kill someone.

One example that can probably create a good foundation to better explain the
complexity of the given situation, is that of the case of R. v. Dudley and
Stephens. A basic summary of the case is as follows: Thomas Dudley, Edward
Stephens, another man by the name of Brooks, and Richard Parker, who was a boy
in his late teens, were the crew of an English yacht. All four of them were cast
away in a storm 1,600 miles away from the Cape of Good hope. This boat was not
supplied with any water or any food, except a few canned vegetables that lasted
them a duration of three days. Being lost at sea, with no food or water, they
needed to find someway to keep themselves alive so that they could live long
enough for them to be rescued. Many days went by, and within that time they had
not eaten or drank anything. Both Dudley and Stephens suggested to Brooks that
someone be sacrificed to save the rest, Brooks disagreed, and they never told
the boy of the idea. The next suggestion by Dudley and Stephens was that they
should draw lots to see who should sacrifice their life to save the others,
again Brooks refused and they did not let the boy in on the plan. Eventually
the decision that if no vessel were to come around the next day, they should
kill the boy. This decision, yet again, came from Dudley and Stephens. Again
Brooks disagreed and the boy was never consulted. A day passed and no vessel was
in sight. Dudley went to the boy, who was sleeping, and killed him. They fed
upon the body of the boy and drank his blood for the following four days when
they were finally rescued. After being returned to shore Dudley and Stephens
were brought to court, put on trial, and lastly sentenced to death by the court.
This decision was eventually brought down to life imprisonment, but then they
released Dudley and Stephens after six months.3 The case of R v. Dudley and
Stephens is very similar to that of the one being looked at in this essay. In
both cases, each group of people do not have enough or any food to survive long
enough to be rescued, someone must die in order for the rest to survive, and
both situations have legal and moral repercussions. Both Dudley and Stephens had
understandable reasons to kill the young boy in order to survive, and could have
escaped being sentenced to death if they had done one thing, consulted the boy.

By not consulting the boy, an argument can be formulated to prove that they
should have never released Dudley and Stephens from their first sentence of
death. The boy never consented to his life being taken away from him, but if he
were consulted and provided a reason to why he must be killed then perhaps
Dudley and Stephens could have avoided any type of punishment. It is probably
safe to assume that the boy would have not wanted his life to be taken away from
him, and Brooks obviously rejected all of Dudley and Stephens' suggestions,
therefore it is apparent that some method of solving disputes was in order. So
is the case with the five people in the bunker. Although they are in a dilemma
of who and how someone should be chosen to die. Unlike Dudley and Stephens,
these five people were able to reach an outside source to aid them with their
problem. First of all, this outside source can offer them a method of solving
their disputes by administering the Meta Rule. The way in which the Meta Rule
operates is as follows, "Disputes are resolved by the decision of one or more
persons, once arguments from each side of the issue have been put."4 An outside
aid is ideal in such a predicament, because they can offer an objective review
of the situation and listen to all the arguments made by those in the bunker;
this a process that is called Audialteramparten, which in Latin means "to hear
both sides." It is important that the decision-maker hear both sides and that
the decision-maker also be a generalist.5 The reason for this, is that by
listening to both sides they can know all the concerns that the people in the
bunker have, and by being a generalist they can be impartial to the situation,
thereby making a rational and fair decision. By imposing the Meta Rule, this
outside source can make a decision, and according to the Meta Rule, this must be
carried out. Whether or not the decision is "wrong" does not matter, it is
imperative and necessary that one be made to resolve the dispute of who, how,
and why someone must die.

The doctrine of necessity is a very important notion to this case, because it is
necessary that someone die in order for the remaining four survive. " "Necessity
knows no law,' it is often said. In other words, you can't be held legally
liable for an act you had to do."6 This is what the people in the bunker must
remember, and this will legally justify the decision to kill someone. Morally,
whether the decision was "right" or "wrong," can be argued till the end of time,
but there is no time to accommodate a moral debate. All that is left to do now,
is to draw lots and find out who is going to have to die for the others to live.
"When the selection has been made by lots, the victim yields of course to their
fate; or if they resist, force may be employed to coerce division."7 As harsh
as it may sound, if necessity has no legal standing in this situation, it should
not stand in any other case. In other words, necessity has been used as an
argument to justify one's actions in other cases and is accordingly justifiable
in this circumstance.

Making a decision on the situation without examining it with knowledge of law
and morality, the Meta Rule, and the doctrine of necessity would make it even
more difficult to find a rational reason why one of the five people in the
bunker should die, let alone justify it. Law and morality illustrated how
sensitive a situation such as this can be, and how difficult it is to make a
pure legal decision when morals are a large part of everyone's lives. The Meta
Rule showed that even when the courts are not present to facilitate a case,
there is always another method of resolving disputes legally. Finally, the
doctrine of necessity explained why some forms of action are necessary and must
be taken and applied to a given condition. It is unfortunate that there are
cases in which people, whether or not they know each other, must kill someone
else to save their own life. It must be even more disturbing, rather than
unfortunate, for a person to sacrifice their life for the welfare of another,
nevertheless it is noble. Perhaps this goes to show that when it is absolutely
necessary to kill someone in order to preserve one's own life, murder is always
justifiable.

Works Cited

1 Patrick Fitzgerald and King Mc Shane. Looking at Law: Canada's Legal System.
4th ed. (Ottawa: Tri-Graphic Printing Ltd.) 1994. Pg.3.

2 Carleton Dept. Of Law Casebook Group. Introduction to Legal Studies 2nd ed. .
(North York: Captus Press Inc.) 1995. Pg.24.

3 Carleton Dept. Of Law Casebook Group. Introduction to Legal Studies 2nd ed. .
(North York: Captus Press Inc.) 1995. Pgs.19-24.

4 Fraser, D. Fall Term Law Notes for 51.100A. (Carleton University) 1996.

5 Fraser, D. Fall Term Law Notes for 51.100A. (Carleton University) 1996.

6 Carleton Dept. Of Law Casebook Group. Introduction to Legal Studies 2nd ed. .
(North York: Captus Press Inc.) 1995. Pg.25.

7 Fraser, D. Fall Term Law Notes for 51.100A. (Carleton University) 1996.