Last week, I discussed R v Dudley and Stephens, and its significance in showing us how the cogs of common law turn. We also looked at the definitions of murder given in Glanville and later by Sir Edward Coke. For the context of the case, please see last week’s article.
However, today I want to look closer at the judgement given in R v Dudley and Stephens (I should note that the “R” stands for Rex or Regina, meaning King and Queen respectively, and this is the standard format of criminal cases, as they are essentially cases about whether or not you’ve broken the laws of the king or queen). This judgement is interesting because it very explicitly draws on morality, and brings up discussions about the extent to which we should keep the moral standards of the past in our laws.
Lord Coleridge (great-nephew of the famous Samuel Taylor Coleridge) read out the judgement of the case which, of course, found the seamen guilty, since necessity was not a justification for murder. First, he narrows the scope of the judgement:
“It is said that […] definitions imply […] that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever […]. But if these definitions be looked at they will not be found to sustain this contention.”
By exluding the idea that there is already an exception in law for murder by what he will term later in the judgement as “necessity”, Lord Coleridge moves the discussion of the legality of the men’s actions towards the morality of their actions: though the law does not already have an exception, should it?
Lord Coleridge asserts that the court has not forgotten
how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure."
Yet, in the very next sentences Lord Coleridge states that the above cannot be seen as valid excuses for the crime of murder. The law must, indeed, set a high bar of conduct, even one that the people setting out the judgement could not meet. Let us go back a bit now, to what I believe to have been the primary justification for this high standard, and examine it further:
the duty of dying for others has been laid down [by Latin and Greek authors] in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for.
Here, Coleridge makes a very explicit point about what he thought to be the highest source of Law as such, the “Great Example” of Jesus Christ. Of course, the judgement was passed in the Victorian Era, when aside from a few small communities, the majority of people were Protestant Christians, and so this raises the question about whether or not we can accept a legal framework which is utterly dripping in theological reasoning for its judgements, here stated plainly of course but placed largely implicitly in the majority of the law from the time of Glanville in the Middle Ages, even up to perhaps the 1960s.
I think we can also juxtapose this with our first case, the Nuremberg Trials, which challenged legal positivism, because if common law’s moral aspects are only incidental to its validity as a legal framework, this places the question of whether we can then, as an increasingly secular society, allow the bases of common law to remain slow to change, and thereby more and more distant from the way we view modern society, or conversely change the law at an increasingly rapid pace through statutes (that have precedence over case law) to fit with our evolving conceptions of morality. Legal positivism does not direct us in either direction, but the Augustinian theory of natural law definitely does: we ought to choose one of these paths depending on where we believe morality leads us.
So, not only has R v Dudley and Stephens been useful in an examination of the system of common law, as a clear example of how case law functions, through a discussion of the religious nature of the judgement passed within it, we also get a number of questions about the place of religion in law, and whether or not this is a valid basis for determining the legality of an action. I would like to thank the reader who asked me about this aspect, and it is for this dual significance of R v Dudley and Stephens that I think it deserves to be the case of the week for, well, another week.