This article is written by R Sai Gayatri, pursuing BA.LLB from Post Graduate College of Law, Osmania University. This article talks about criminal theory and the relation between law, crime, and morality.
Table of Contents
Introduction
Most of us have watched some show, movie or documentary that deals with a criminal. They decode what was the need for a person to become a criminal, the circumstances he went through, the reasons that motivated him to commit a crime, etc. In some cases, these criminals are also portrayed as heroic personalities. In reality, as well, no sphere of life is free from crime, you name a thing and it mostly has some crime associated with it. Therefore, it is imperative to have a set of legal and moral rules that distinguish between what is right and what is wrong to establish an ideal society. However, these legal and moral rules are often found to be in conflict with each other. Through this article, we will try to understand what is criminal theory and the link between crime and morality.
Recognizing the presence of morality in a crime
It is a known fact that a crime is usually committed to acquire something that a person otherwise cannot without employing illegal or immoral means. Let us understand whether a crime has an element of morality in it or not and if yes, then does it affect the punishment for committing such crime.
The relation between law and crime
Law and crime go hand-in-hand not just in theory but also practically. It is a thumb rule when it comes to criminal law that any crime committed, must be treated as a crime whether it was done morally or not. As already mentioned, legal and moral rules are often found to be in conflict with each other and it is so because they cannot be precisely separated. What the law states to be a crime can be right morally and what morality states to be wrong can be right legally.
Motive plays an important role in deciding whether a crime committed is morally right or not. It refers to the reason for which an act is done by a person. Let us understand this through the following examples:
- It is the rule that a person must pay the rent to be able to legally maintain his tenancy. An owner has the right to ask a tenant to vacate the premises in case he fails to pay the rent. Now, an old man who does not have a steady source of income or anyone to look after him fails to pay the rent on time due to some medical issue. As a result, the owner of the house forces the old man to vacate the place. Here the act of the owner is legally right but morally wrong.
- A destitute old woman to feed her grandchildren steals 1 kg of rice from a shop. Here, the act of the old woman is legally wrong but morally right. However, there are certain cases where stealing food when hungry or necessary was not considered unlawful.
Law, prima facie, appears to be indifferent to what the moral outcome of an act is but when taken a closer look it actually maintains morality in society through its provisions. For example, in the year 2012, a hotel called Uno-In in Bengaluru, India was opened to serve only Japanese people. A complaint was filed by people of Indian origin against such discrimination done by the hotel. As per Article 15(2)(a) of the Indian Constitution, no person, on the ground of place of birth be subjected to any discrimination or restriction with regard to accessing any public restaurant or hotel. As a result, the hotel was shut by the Greater Bangalore City Corporation in the year 2014 based on the reason of racial discrimination. Thus, the law, in this case, maintained morality by eliminating discrimination.
The Natural Law Theory and the Law Positivism
Natural Law Theory
Certain laws in this world are immutable that have been followed since time immemorial and will be followed for many long years to come. These laws constitute a cluster of fixed truths that are in no way affected by human beliefs or perspectives. Natural law, also termed moral law, is called so because it is based on a priori knowledge (knowledge a person gains without the interference of any outside experiences). Natural law is defined as the law of the divine, it does not require a particular Act or Statute to give it recognition and implement it.
Law Positivism
The word positivism here is derived from the term ‘positum’ which means ‘as it is’. In this particular theory, it is stated that law must be interpreted as it is. Law Positivism is also known as the analytical school of law because it is against the concept of a priori knowledge. Here, a priori knowledge refers to such knowledge where a person gains information without the interference of any outside experiences. This theory of law positivism opines that law must be objective and morals are subjective, if both are combined, the law will no more be objective. What the law ought to have been as per an ideal society is not the concern of this theory, since it interprets the law as it is. It further states that laws must be treated as commands, they must be independently analyzed without the involvement of moral aspects.
Landmark Judgments
R v Dudley and Stephens
The case stated – whether necessity can be a ground for defense as per the law?
Facts of the case – due to their ship being wrecked, a cabin boy and three sailors were adrift in a boat 1600 miles away from the shore. Six days went by without water and eight days without food. As a result, the sailormen killed the cabin boy and ate him due to hunger as it was the only option for their survival. After four days, the sailormen were rescued by a ship, they were convicted of murder upon reaching England.
Judgment of the case – it was held that committing murder cannot be excused on the grounds of necessity. The sailormen were sentenced to death but later the punishment was reduced to imprisonment of six months. Therefore, necessity cannot be a ground for defense as per the law.
Oppenheimer v Cattermole
The case stated – whether English law can refuse to recognize the Nazi laws for the appropriation of Jewish property
Facts of the case – Mr. Oppenheimer was a German resident, he was an educator there. He was kept in the Dachau Concentration Camp, Southern Germany for a little while. Later, he traveled to Britain and acquired citizenship there. The German authorities were determined to provide remuneration to the representatives of the Jewish religious communities. Likewise, Mr. Oppenheimer was provided with an annuity and a pension after he turned 65. Mr.Oppenheimer had acquired British citizenship, so a question was raised whether he is liable to pay taxes on his annuities or not since he was additionally a resident of Germany as well.
Judgment of the case – based on the German law 1913, that “a German lost their German nationality if they procured a nationality without authorization.”, the UK Special Commissioners for annual assessment held that Mr. Oppenheimer lost his German citizenship and was directed to pay the taxes.
R v Cox
The case stated – whether doctors who kill are murderers or not?
Facts of the case – a general physician injected a high dose of potassium chloride into his patient who was ill for a long time and in severe pain. With the consent of her family, she had asked the general physician to end her suffering. He did so and the patient died a comparatively peaceful death shortly afterward.
Judgment of the case – the general physician was not charged with the offence of murder since the patient was cremated before any inquiry started and as a result, the reason for her death could not be proved conclusively. However, the general physician was found guilty of attempted murder. Accordingly, he was sentenced to 12-month suspended prison.
Frenchay NHS Trust v S
The case stated – whether a person can be medically allowed to die with the consent of the court?
Facts of the case – a 24-year-old patient was admitted to a hospital for drug overdose which resulted in a coma. While in the hospital, the feeding tube of the said patient became detached and the consultant in good faith directed them to do nothing.
Judgment of the case – it was held that the consultant who in good faith directed to not operate the said patient for replacement of the feeding tube was not guilty. As a result, the patient was allowed to die.
Roe v Ministry of Health
The case stated – whether a doctor is liable if he had done an act as per general practice?
Facts of the case – an anesthetist gave a spinal aesthetic contained in an ampoule, which had been contaminated with phenol to a patient. The fact that the contamination took place was unknown to the anesthetist.
Judgment of the case – it was held that the possible danger of invisible cracks was not known until the year 1951. As a result, the complainant’s claim did not stand and the doctor was not held liable.
Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)
The case stated – whether a 16-year-old girl is entitled to refuse consent for a proposed treatment?
Facts of the case – a 16-year-old girl was suffering from a disease called anorexia and the local authority wanted to provide the girl with treatment for the same against her wish.
Judgement of the case – it was held by the court that a 16-year-old does not have an absolute right to refuse consent for a proposed treatment. The court’s consent prevailed over the refusal of the consent of the minor. The court further stated that in the best interest, immediate treatment must be given to the girl and the girl was accordingly given treatment against her will.
Viewing crime and morality in the current scenario
Crime and morality have been conflicted with each other since time immemorial, the irony here is that even after so much of legal development, the issue continues to be the same. Whether law prevails over morals or whether morals prevail over the law seems to be a paradox as both are interpreted in different ways by different people. The circumstance, need, and way in which an act is done will itself unveil whether it is morally right or wrong.
What seems to be morally right for one person may seem morally wrong to another. For example, the Female Genital Mutilation (FGM) practiced by the Dwoodi Bohra community in India is legally wrong but it is still carried out by the said community as it seems morally right to them. Another example is refugees and the moral obligation of certain countries to shelter them. But due to the reasons such as safeguarding the nation, maintaining self-sufficiency, etc the governments are not providing these refugees with any shelter, rather they are passing laws to restrict them from taking shelter in the country. Countries such as Greece, Thailand, Italy, Turkey are identified as least-migrant accepting countries.
Conclusion
The link between crime and morality is such the purpose of one compliment another. Any moral that is aimed towards the betterment and progress of society must be hailed and if needed must be given a legal basis as well. If the same moral takes the form of a crime, it must be stopped with the help of the law. The main contention is to ensure that no matter what a person follows i.e morals or law he must act towards his and society’s benefit. Morality has many dimensions and these dimensions fit into the grooves of law in such a way that they seem to be inseparable from each other, which in certain cases cause conflicts. Morals are engraved within a person’s mind, he may judge them and act as per his conscience but the case is not the same when it comes to law. You either obey the law or face the consequences for disobeying it. Thus, it can be said that morality is the rulebook and law is the keeper of such a rulebook.
References
- http://www.legalservicesindia.com/article/1842/Law-and-Morality.html
- https://www.hindustantimes.com/static/fgm-indias-dark-secret/
- https://indiankanoon.org/doc/1732536/
- https://www.independent.co.uk/news/world/europe/stealing-food-if-you-are-poor-and-hungry-is-not-a-crime-italian-court-rules-a7011631.html
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