Evaluate the contention that the Court of Appeals determination Essay Example

this viewpoint, distinguished positivist scholars like Jeremy Bentham and John Austin maintain that there exist distinct differences between these two concepts which do not coincide.

[7] The focus of natural law theories is on society, while positivism emphasizes the analytical and descriptive aspects of law. [8] Nazi Germany's adoption of positivist and utilitarianism principles led to a decline in support for positivism, which subsequently sparked renewed debates about natural law.

Lon Fuller and H.L.A Hart engaged in a famous jurisprudence debate regarding the Nazi Grudge Informer cases in Germany after World War II. Hart's argument refuted any inherent relationship between a legal system and the pursuit of justice or morality, proposing instead two inquiries: assessing the law's validity and evaluating the effectiveness of the legal system.

[13] Contrary to the belief that law and morality can be distinguished, Fuller held that the courts after the war were obligated to reject Nazi laws as they were merely tools of a corrupt regime.[14] It is evident that moral principles often influence the institutions and concepts that regulate our legal system.[15] Raymond Wacks appropriately highlights that ethical concerns pervade every aspect of the law.[16] The legal and moral predicament presented by the Re A case is a striking demonstration of this issue.

A pair of conjoined twins were born, with the medical term for their condition being ischiopagus. One twin, named Josie, was considered the healthier one and deemed "normal" or "good". The other twin, Mary, had three significant abnormalities: a primitive brain, an undeveloped heart, and severe pulmonary hypoplasia. Mary relied on Josie's heart to circulate blood throughout their shared body.

This placed a significant burden on Josie, who

faced certain death along with her non-viable twin if they remained conjoined. The hospital physicians suggested performing a separation surgery to save Josie's life, but at the cost of the other twin's life. However, the parents, who were practicing Catholics, declined to authorize the operation due to their religious beliefs regarding preserving both of their children's lives.

The hospital requested the court to declare the proposed operation as legal and in the best interests of both twins. This request was made after considering the idea of sacrificing one twin's life for the survival of the other was not acceptable and contrary to God's will. Justice Johnson, in the High Court, found the operation to be legal and in Mary's best interest as her continued existence would have been painful and short-lived, and separating them would be an omission rather than an act.

In their appeal, the parents argued that the Judge's ruling was incorrect due to three reasons: Mary's interests, Josie's interests, and the legality of the operation. The Court of Appeal acknowledged that the High Court's initial decision was correct but stated that Johnson J had used flawed reasoning to reach his verdict. All of the Lord Justices agreed that the appeal should be rejected, and that Mary's separation from her twin sister constituted lawful homicide. Ward, Brooke, and Robert Walker L should be noted for their opinions in the matter.

J achieved this verdict for various reasons. The Court of Appeal did not ask whether it was best for Mary to receive life-prolonging treatment but whether it was best to separate her from Josie via a fatal operation. Ward L.J. had a challenging

decision to make, only fully realizing the gravity of the situation after seeing a visual depiction of the twins.

Reflecting on his experience, he noted that despite the medical records, he was surprised by the intense sadness and shock that he encountered. In arriving at his decision, Ward relied on Lord Goff's comments in the Airedale NHS Trust v Bland case, which sets a precedent for similar cases. According to Lord Goff, the focus should always be on whether the treatment would be beneficial rather than whether the patient's life is of value. Ward considered both options to be undesirable and opted for the choice that would cause the least harm.

There seems to be a comparison between this perspective and the utilitarian reasoning of the hypothetical trolley situation.[24] Ward claimed that the surgery was beneficial for Josie, but acknowledged that Mary had a right to exist, albeit with little right to life.[25] The argument was that Mary was essentially killing Josie by depleting her life-force. This notion of Mary's existence being temporary implies her responsibility under conventional legal morality.

[26] The image of Dracula feeding on a victim is both monstrous and evil, which is reminiscent of the impression one may have of Mary. [27] However, using emotive language like this can harm Mary's image by suggesting there is only one child to consider. Since birth, Mary has faced such criticisms, with surgeons regarding her as nothing but a "tumour" that ought to be removed without hesitation. [28] Robert Walker L.J. later tackled the essential question of who should be deemed a person.

[29] Ward L.J interpreted the situation of Mary taking her sister's life-blood as a

form of self-defense for Josie, adjusted to the specific circumstances. He suggested that Josie would object if she could speak, telling her sister to 'cease killing' her. The doctors had a responsibility to care for both siblings, but performing surgery was not an option as it would result in Mary's death and she was unable to live independently. Thus, they were obligated to care for Josie.

Despite Mary being beyond help, Josie was deemed to have acted lawfully thanks to the scales of fairness tipping in her favor, according to Ward. However, Lord Justice Brooke approached the issue of murder from a different perspective and adopted the legal doctrine of necessity. He acknowledged the challenge of using this concept and referenced cases like R v Dudley and Stephens to support his stance. The three necessary factors for necessity were deemed satisfied: the act was required to prevent unavoidable and irreversible harm, only the reasonable amount needed for the purpose was used, and the harm inflicted was not excessive in comparison to what was avoided. The Court of Appeal ultimately relied on this defense of necessity to save Josie's life.

Re A marked a departure from common law, which did not consider necessity as a valid defence for murder. The court overruled years of legal precedent, based on unaddressed moral arguments, in order to justify its declaration.[32] Brooke's decision rested on two factors: the sanctity of life and the notion that Mary was fated to die. Critics have challenged these factors. Brooke and Ward both placed great importance on the sanctity of life. Michael Bolander has argued that this doctrine is significantly undermined when considering the

relative worth of each twin's life.

Brooke's argument was that individuals should have the right to bodily integrity, even if nature has denied them this. However, this raises the question of whether those with artificial limbs or pacemakers should be separated from these instruments, which greatly improve their lives. John Harris criticized Brooke's argument for being poorly developed and lacking depth. Lord Justice Walker was the only judge who believed that the operation benefiting Mary was also in her best interests. The statement that Mary was designated for death is unfair as she did not choose to be born with her condition.

Robert Walker L.J. emphasized the significance of the welfare principle as stated in Section 1 (1) of the Children Act 1989, which states that "the child's welfare shall be the courts paramount consideration" [37]. He raised two crucial questions regarding the case: whether there were two individuals involved, to which the answer was affirmative, and whether Mary was born alive, which was also answered positively. However, it was emphasized that Mary was unable to exist separately [38].

The use of invasive surgery in this scenario is considered a positive act under the Doctrine of Double Effect. Although not legally binding, this doctrine serves as a moral guide in challenging situations. Aquinas first introduced this concept as a means of justifying self-defense-related homicide. The author argues that separating the twins would benefit both by allowing Josie to live with dignity and enabling Mary to pass away with dignity.

[40] By destroying Mary's life, how can one justify her regaining her dignity? [41] According to Philippa Foot and her concept of positive and negative duties, we must acknowledge

both our positive and negative duties. [42] Ward has highlighted that in this situation, choosing the lesser of two evils is necessary. "Another person" has accused the court of prioritizing medical science and social utilitarianism over the religious conscience of the parents.

The Court of Appeal was faced with a difficult task, involving various issues ranging from family law to criminal law. The decision to take away parental rights was questioned as to its ethical validity. Despite a heroic attempt, the Court's analysis seemed flawed as it heavily relied on moral concepts and language in its judgments. The decisions often seem to choose the morally ‘soft option,’ which may appease public opinion but did not establish a settled principle in law. As a result, it appeared to make murder morally permissible without sufficient legal precedent to go on. [43][44][45][46][47]

[48] The use of the law for a utilitarian goal that involved taking two lives has paved the way for potential lawful acquittal cases centered around euthanasia.[49] The decision of the Court of Appeal regarding this case would have been divisive, as Lord Justice Ward acknowledged from the start. The attempt to approach this case in a positivist manner was complicated by the absence of legal precedent, and ultimately allowed moral considerations to come into play. The parents of the twins were accorded respect throughout the case, but their stance was always in the minority, despite support from the Archbishop of Westminster and Pro-life advocates.