Law and Morality (Week 5)

Question 1

How does Durkheim link morality and law?

Answer 1

Society is a moral phenomenon - individuals are influenced and joined by a moral context
Ideally society founded on a set of shared values - maintain social solidarity

Question 2

What are the three shifts Durkheim observes in current society?

Answer 2

1. Shift from mechanical solidarity to organic solidarity
2. Shift from religion to new social institutions to maintain social solidarity - weakening of common morality
3. Shift from law as repressive law to restitutive law

Question 3

What is the main tenant of legal positivism? what kinds of laws might this birth?

Answer 3

Detach law from moral context, there may be overlap but this is not necessary
Law can exist for amoral reasons

Question 4

Define fitzgerald’s tragic choices?

Answer 4

Decisions that have no right answer

Question 5

What was the legal issue in the Dudley & Stephens case?

Answer 5

The definition of murder as unjustified intentional killing

Question 6

What is the significance of the D vs S case?

Hint: Illustrates 3 things

Answer 6

Authoritative case for common law defence of necessity
Illustrates policy aspects of law
Illustrates moral aspects of decisions
Illustrates the importance of understanding social, historical, political contexts of cases

Question 7

List the main legal facts of the Dudley case?

Answer 7

1. Dud steph brooks and park all survive shipwreck
2. Day 20 - after failing to draw lots they kill park (brooks not agree)
3. Day 24 - three men are rescued
   Court recognizes that they would have died without killing park, but they would not have known this at the time

Question 8

What were the major anomalies in the Dudley case?

Answer 8

Existence of special verdict by jury
Major edits in the verdict
Tried at appeal level
Conviction was affirmed before it was entered

Question 9

What were the competing legal arguments in the Dudley case?

Answer 9

Crown - intentionally killing park without legal justification
Defense - jurisdiction, and killing justified by starvation

Question 10

What are the foundations of necessity as a viable defence?

Hint: there are 4

Answer 10

1. state of nature (necessity)
2. impossibility of free will (duress)
3. utilitarian defence (calculation)
4. human frailty (excuse not justification)

Question 11

What was the verdict of the Dudley case?

What are the critiques of this decision?

Answer 11

Rejects necessity defence on the grounds that it is dangerous and immoral
Reflects view that judge’s role is to lay down moral code
Critique:
- weak moral support for guilty verdict (to positivist)
- not address reality of life at sea (self sacrifice and inaction)
- Real reason for conviction was policy decision

Question 12

What was the sentencing outcome of the Dudley case?

What is the wide reaching effect of this case?

Answer 12

cruel but essential formality - sentenced to death
Royal prerogative of mercy - request for pardon ready before sentence passed, released after 6 month prison stay

Clash between customary rules of the sea and positive law - tension between crown and State (against cap punishment)

Question 13

What was the symbolic message of the Dudley og sentence?

Answer 13

Authority of law must not be challenged by customs
Strive to be better than basic instincts
Necessity understood very narrowly (even today)

Question 14

Who is Latimer?

Answer 14

Killed disabled daughter due to constant pain and seizures
Judge rejected necessity defence
Jurors wanted a say in sentencing though

Question 15

What are the 3 parts of the necessity test in Canada?

Answer 15

1. accused must be in imminent peril or danger
2. The accused must have no reasonable legal alternative to breaking the law
3. The harm inflicted by the accused must be proportional to the harm avoided by the accused