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The Speluncean Explorers is a fictional case in which a group of people go to explore caves and end up getting trapped in a cave with very meager resources and amenities to last them. As a rescue team is set to work to get these men out of the cave, the clock keeps ticking and the men are deprived of food and water. Then one of the members who are trapped in the cave comes up with a suggestion of casting lots and killing a member and feeding on that person’s flesh and through this way survives a bit longer until they are rescued. This is at first opposed by all the members but later on agreed. It is very important to note that this idea was suggested only as the last resort. However the person who had originally come up with the suggestion backs out at the last moment, but his fellow men do not agree to him and forcibly cast lots on behalf of him and unfortunately the dicing goes against him and he is put to death. Shortly after this chain of events the remaining surviving members are rescued and they are bought to court under murder charges for killing Whitmore. These are the facts of the fictional case, and various judges suggest and give their judgments. The judge with whose way of approaching law I agree the most is that of justice foster. The way he looks at things is similar to the way in which I also would have looked at law in the given conditions with respect to the fictional case of the Speluncean explorers. I would first like to explain as to why I agree with his approach of looking at law with respect to the Speluncean explorers. As we clearly read in his judgment he completely supports the fact that the five survivors should not be hanged or convicted and that they should not be termed as murders, given the circumstances in which they were put in, it was natural for any person to have acted in da savage manner that the five surviving members of the expedition acted. One main point that the judge expresses which is of great relevance is that, only because we all live in the state of nature where we consider that killing is a wrong thing. If we were to live in a savage state or an environment where killing was not considered a crime and eating the flesh of another person was not considered a crime or a savage and brutish act then we would not have considered this act ( i.e. the killing of Whitmore) such a big
Crime. Convicting these five men as murderers would not only be an unfair judgment but it would also question the very common law on which all the judgments are based upon. Of course many people would not agree with my stand of supporting foster as the very act that the men had committed could not be considered as a just act in today s world, but I would also like to point out that it is also very necessary to see the situation under which the act was committed. We should consider the fact that the men took the decision off feeding on their fellow men s flesh only as the last resort. And such a suggestion was in fact brought into light by the victim himself. Though justice tatting had opposed to fosters way of looking at things and said that the men were not in a different state of nature where the killing of fellow men was not considered a crime, practically if we were to put ourselves in that position we mostly would have acted in the very manner that the 5 surviving members of the expedition acted. Foster according to me has looked at a broader perspective of law and not only considered the present case. Only because all of us are in an environment where killing was considered a crime, do we actually consider the act committed by the men to be brutish. If we to live in a tribal village for instance in the African regions where killing was not considered to be a crime and more importantly killing a human being was not at all considered a murder in the books of crime, then we would not have minded what the men had done. The whole incident would have been considered as an event in which one had to be sacrificed for the rest to survive. Only because we are in an environment in which there has been these preset laws which we have been imbibed in our minds, due to the environment in which we have grown that killing is a wrongful act and moreover killing of a person and eating him up is considered a wrongful act. Though many would also point out and counter argue that however hard their situation was the fact that they killed another man against his wish and fed on his flesh cannot be called as a just act. Yes this cannot be called as a just act if it was done in normal conditions where there was free access to food and water. The situation that these men were subjected to was not so and this plays a very important role in deciding the case. It is also very important to note that Whitmore the deceased himself was the first person to suggest such a measure and he backing out in the end cannot be considered as a just thing and most of all during the rescue mission ten members died during digging up the cave. It is here that fosters argument for stating that these men are innocent can be considered, when he clearly points out that when ten people s lives can be taken away for rescuing five people, why not kill one person to keep the same five alive ? Especially when the one whose life was taken was the same person as who actually suggested this idea of killing one person in order for the rest to survive. Foster’s way of viewing law is quite different from that of the others. He has considered the surrounding conditions which were prevalent at that time as an important factor for basing his judgment and decision which is very important. Though tatting disagrees with almost everything that foster has to say, I completely agree with foster’s way of thinking. One of the most important things to be considered for basing a judgment is the facts and the situation which the victims were subjected to. Foster has taken into consideration both of these and hence I totally agree with his way of thinking and interpreting law and I also agree with him in stating that the surviving members are not guilty of murder at all.
John Langbein has clearly stated the pros and cons of an adversarial system and that of a non-adversarial one in his speech “Why adversary justice fails”. The adversary system is mostly based on the English law and is mostly practiced in the United States and Canada, where as the non-adversary system is practiced in the United Kingdom and the Scandinavian states. In his speech John Langbein has clearly distinguished between an adversarial one and a non-adversarial one. One main difference given between these two types of systems is that the adversarial system is based on the English law, whereas the non-adversarial one is based on the common law. Most of the newly formed nations such as Brazil have adopted the non-adversarial one due to a no of reasons. One main reason is that in the non-adversarial one there is less means for corruption, but this is
not so in the adversarial one. In the adversarial one the two parties are the ones who state the facts and argue the case, the court does not investigates the case, they are supposed to decide the case based on the facts presented to them by the lawyers of the two parties. This is often not a very favorable way of going about a case as each lawyer may point out only those facts which are relevant to his side of the case. As a result some most relevant facts may be lost during the process which may have been very important to the decision of the judge. The lawyers of each party will be busy in only pointing out those points which are in his favor that the truth more often than not is subsided and this ultimately does not serve the main purpose of all courts and that is JUSTICE. The real victims may not be able to get justice and the wrongdoer may easily get away. Money plays a major role in an adversarial kind of system. In a non-adversarial type of system the court itself plays a major role in investigating a case. The lawyers only have to answer the questions asked by the judges and they can direct the court in various directions of looking into the various issues that they find relevant. This consumes very little time and gives less way for corruption among the lawyers. However one very important thing to notice in this kind of a situation is that in this system the judges have an upper hand as they more or less is the controller of the case. Hence this can also sometimes lead to corruption as the whole case rests in the hands of one person. However this kind of a system is preferred by most of the countries for a number of reasons such as: 1.it is less time consuming, money does not play a major role, and the true facts cannot be hidden as the court itself looks into the matter.
The way of going about a murder trial in a non-adversarial system is totally different from that of an adversarial one. It is less time consuming and a more just way of going about a case. There are not that many manipulations as the court itself investigate the case. One very significant thing to be noted in the way of going about a murder trial in a non-adversarial one is that the victim or the accused himself is allowed to defend himself of the charges that are stated against him, he can either choose to defend himself, have a lawyer defend himself or remain silent. In most cases the accused chooses to speak out and defend himself as if he does not do it, then it will be a negative point to him and he will be considered guilty or a wrongdoer. This method of asking the accused to first defend him is a very good point as it helps the court to come into the closest evidence and witness that they have for the case in the first instance itself. This will not only give the true facts of the case, but it will also help in saving a lot of time. Another important note to be considered or remembered in going about a murder trial in a non-adversarial system is that the court itself directs the way or the mode of investigation. The lawyers can only direct the court in looking into the issues that they find relevant for their client. An important thing to be noted is that the lawyers have to fight their case only with one set of facts. There are no two sets of facts from which the court has to choose from (which is practiced in the adversarial form of justice). The court gives the facts and the lawyers have to fight for their cause based on those facts. The court carries out all the investigations. However the lawyers can direct the court to look into certain parts of the case and investigate in those areas also. These are the ways by which a non-adversarial court goes about its investigation in a murder trial. However in an adversarial form the lawyers would go about finding the facts of the case and the accused more often than not would not be given a chance to speak for himself. There is a jury set up and this jury is given the power to vote for or against the victim. Mostly 12 members of the jury are members who are not related to the event in any manner and the remaining members of the jury are mostly people related to the incident or know the victims in some manner or the other. While there is a jury in an adversarial system, there is none in a non-adversarial one. The accused cannot speak up for him in an adversarial one and the court decides on the case based on the facts given to it by the lawyers of the two parties. The courts do not carry out the investigation. Hence these are the various differences between the two systems and the ways they go about deciding a murder case.
3. A society which has only primary obligations faces many challenges. Laws that impose duties and obligations on individuals and various members in a common society are described by Hart as “primary rules of obligation.” In order for a system of primary rules to function effectively, secondary rules may also be necessary in order to provide an authoritative statement of all the primary rules. Secondary rules may be necessary in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective and inadequate. Secondary rules may also be necessary in order to enable courts to resolve disputes over the interpretation and application of the primary rules. The people living in the society must have a similar mind set on living and a common way of thinking and this is one of the ways by which they can live without any laws or regulations. And the people who oppose laws must be of a minority in comparison to the ones who follow the same pattern of mind set and thinking nature.
In order for the primary rules of a legal system to function effectively, the rules must be sufficiently clear and intelligible to be understood by those individuals to whom they apply. If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty about the obligations which have been imposed on individuals. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether powers have been conferred on individuals in accordance with statutory requirements or may cause uncertainty as to whether legislators have the authority to change laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and application of laws.
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