1 Introduction
Necessity as a ground of justification falls under the third element of the crime, Unlawfulness, in Criminal Law. The need to rely on the defence of necessity arises when one must choose between suffering an inevitable evil or danger and breaking the law to avoid such an evil and can be used if the accused, when faced with such a dilemma, chooses to break the law and/or inflict harm on an innocent third party. Necessity, as a defence to murder, violates the Constitutional rights to life and equality, as the right to life is viewed as "antecedent to all other rights in the Constitution." Because, “on a charge of murder, a successful defence of necessity or compulsion would imply that one life (that of the accused) is more valuable than that of the deceased,” it is questioned and critically discussed herein what the legal position regarding this matter should be. English law expects that one must be the hero and lay down his or her life for the life of another, while the South African (SA) law position is that necessity “can constitute a complete defence to a charge of murder.”
2 Necessity as a ground of justification
Necessity as a ground of justification will succeed if one acts out of necessity to protect one’s (or another’s) legally recognised interests from an inevitable danger or evil. This inevitable danger may take the form of an unlawful human act, a natural disaster or an attack by an animal. There is, therefore, a weighing up of the threatened interest and the violated interest.
Necessity can be used as a defence, making the specific act lawful , in certain circumstances if the act complies with the requirements of the defence being (1) there must be an inevitable danger threatening a legally reco...
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...f another above his or her own. For this defence to succeed, the courts must be convinced that, under the circumstances, it was necessary to take a life in order to save one’s own.
On the other hand, English law unrealistically expects a person in a situation of necessity in the case of murder to, in conflict with the SA position, sacrifice his or her own life in order to save that of another.
A more realistic way in which the law could develop in this regard is to take into account both positions, namely that although it is arguable whether a successful defence of murder contradicts the Constituiton, it is necessary to consider a realistic response of a person (the accused) under circumstances of necessity. There must, however, be stringent consideration of the circumstances when taking into account the success of the defence and punishment for the conduct.
On September 12th, Carmela Buhbut, a battered wife who shot her husband to death 31 times from a close range, was sentenced to seven years imprisonment. She then appealed to the Supreme Court against the severity of the sentence. No less than three different justices held the complicated appeal- Bach, Kedmi and Dorner. All three of them, agreed that there is no doubt, that taking a person’s life is a crime which Buhbut should be punished for. However, only of them, justice Kedmi, thought the appeal should be dismiss in limine.
' The notion that punishment is needed as an example asserts that the punishment for murder, or the punishment any crime for that matter, should be employed as a deterrent and to inspire fear that will prevent others from fulfilling the said crime in the future. This illustrates a depressing and gloomy view of human nature, as being corrupt at its core and that fear remains the only thing that prevents us from committing evil acts. Rather, I believe that laws and the punishments associated with the infringement of laws are an agreement between a citizen and the society they live in about what is appropriate and agreeable behavior that protects the basic rights of all citizens and holds all citizens as equal in front of the law. Thus, if someone kills another person and the circumstances of the crime are not within the previously established laws, then the person should be held responsible regardless of whether one would kill that person if they could help it or
The ‘Trolley Car Problem’ has sparked heated debates amongst numerous philosophical and jurisprudential minds for centuries. The ‘Trolley Car’ debate challenges one’s pre-conceived conceptions about morals, ethics and the intertwined relationship between law and morality. Many jurisprudential thinkers have thoroughly engaged with this debate and have consequentially put forward various ideologies in an attempt to answer the aforementioned problem. The purpose of this paper is to substantiate why the act of saving the young, innocent girl and resultantly killing the five prisoners is morally permissible. In justifying this choice, this paper will, first, broadly delve into the doctrine of utilitarianism, and more specifically focus on a branch
In what follows, I evaluate what I take to be the most compelling argument in support of restraint. For ease of exposition, I shall refer to this argument as the argument from respect. What is that argument?
The one thing about this argument, though, if it were valid, it would not show that capital punishment is never proportionate and just, but only that it is very rarely so. The implication of this argument is not that we ought to do away with capital punishment altogether, nor that we ought to restrict it to those cases of murder where the murderer had warned the victim weeks or months in advance of what he was going to do, but we ought to reexamine the procedure of carrying out this kind of
Since the year, 1976 one thousand- three hundred and ninety-two individuals have been sentenced to capital-punishment. The term capital punishment has been coined to kindly identify the death penalty or execution. The death penalty has remained a major controversy for quite some time. Today, one of the most debated issues within the criminal justice system is the issue of whether or not the death penalty should be seen as being an ethical procedure. Prior to the year 1972, it had been seen as being legal. In 1972, the Supreme Court evaluated the terms of the death penalty and ruled it as being unconstitutional (History of the Death Penalty). The right or execution violated citizens eighth and fourteenth amendment rights. Nevertheless, the Supreme Court contradicted themselves in 1976 and reinstated the death penalty. Today, it is up to the states discretion rather or not they are going to permit capital-punishment. Through this essay the reader will read the pros and cons of the death penalty and the writers standpoint in regards to the capital
The only crime in the United States that is legally punishable by death is criminal homicide. While the definition of murder has undergone rigorous analysis, legal scholars often ignore the theoretical justification for capital punishment. As a result of the Supreme Court ruling in 1976 that upheld the constitutionality of the death penalty, there is little debate on the justificatory aspect of the death penalty in law. The purpose of this paper is to shed light on the moral permissibility of capital punishment for murder based on ethical principals of punishment by death. To do this, it is important to take into account some alternate moral theories as potential sources for theoretical justification and to consider the observations of many renowned philosophers including Immanuel Kant, John Stewart Mill and Aristotle.
... found justice for the victim who lost their lives at the hand of a criminal. The critics of capital punishment argue that the government over reached it authority pertaining to the death penalty and have sought to judge in God stead. However, the advocates of capital punishment argue that many nations whether modern or ancient has used capital punishment as a method of justice. This author think that capital murder is a debatable issue that should always be approach with caution.
This essay will discuss the various views regarding the death penalty and its current status in the United States. It can be said that almost all of us are familiar with the saying “An eye for an eye” and for most people that is how the death penalty is viewed. In most people’s eyes, if a person is convicted without a doubt of murdering someone, it is believed that he/she should pay for that crime with their own life. However, there are some people who believe that enforcing the death penalty makes society look just as guilty as the convicted. Still, the death penalty diminishes the possibility of a convicted murderer to achieve the freedom needed to commit a crime again; it can also be seen as a violation of the convicted person’s rights going against the Eighth Amendment of the United States Constitution.
Since the 1700’s forms of the death penalty have been used for one reason or another, but today some disagree with this judicial practice. The death penalty is the ultimate punishment imposed for murder or other capital offenses, and in Alabama a capital offense is murder with eighteen aggravating factors. In 1972 the Supreme Court moved away from abolition, holding that “the punishment of death does not invariably violate the constitution” (Bedau, Case against 2). Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder (Bedau 7) and because of these startling numbers people are against capital punishment. It is a horrible reality to convict an innocent person of a crime and even worse to put this person on death row. There are even more horrific stories, like the one of Roger Keith Coleman, who was executed in Virginia despite widely pu...
Ethics and morality are the founding reasons for both supporting and opposing the death penalty, leading to the highly contentious nature of the debate. When heinous crimes are com...
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
The mother-son case illustrates that there are more factors in play than just the two that Thomson presents in her thesis. Thomson’s conditions by themselves cannot explain every situation. The relationship between the people involved can also affect whether a decision is morally permissible or not. If that relationship entails that one person is emotionally bound and ethically responsible for the security and well-being of the other, the first cannot knowingly contribute to the death of the second. Thomson’s thesis must be modified to include this condition as well.
VanArsdall, Kelsey. “A Law to Protect.” Quill Feb. 2005: 15 MasterFile Complete. Web. 18 Feb. 2014.
"At the point when blamable crime is not kill. – Culpable manslaughter is not kill if the guilty party, while denied of the force of self – control by grave and sudden incitement, causes the demise of the individual who gave the incitement or causes the passing of whatever other individual by slip-up or