Reasonableness and Murder: The Evolution of Legal Definitions, Lecture notes of Law

Download Reasonableness and Murder: The Evolution of Legal Definitions and more Lecture notes Law in PDF only on Docsity! Reasonableness, Murder And Modern Science Rem B. Edwards and Frank H. Marsh ur murder laws have been and now are designed to afford protection against killing to reasonable creatures. In a number of states, murder laws are so worded or so interpreted by the courts that they define "murder" as the killing of areasonable creature in being instead of as the killing of a human being. Even those states which define murder as the killing of a human being presuppose the impor- tance of rationality, since their laws have their roots in the conceptual and legal tradition of English common law which accepted the Aris- totelian definition of "man" as "a rational ani- tnal." Consider for a mornent the following laws and judicial decisions which still make it quite evident that the intent of the law is to afford pro- tection against killing to reasonable creatures, all of which explicitly reaffirm the common law def- inition of murder. In Tennessee, the murder law (which is the common law definition in toto) reads: "If any person of sound memory and dis- cretion, unlawfully kill any reasonable creature in being, and under the peace of the state, with malice aforethought, either express or implied, such person shall be guilty of murder."l In Mich- igan, "murder" has been judicially interpreted to mean: "Murder is where a person of' sound memory and discretion kills any reasonable crea- ture in being, in the peace of the state, with mal- ice aforethought, either expressed or implied."2 In Delaware, the murder law was judicially inter- preted to cover the following: "Where a person of sound memory and discretion, unlawfully kills any reasonable creature in being with malice 24 aforethotrght, is guilty of murder."3 In Ir./ew Jer- se), the corlrts have also explicitly interpreted murder to be killing a reasonable being with malice aforethought.a Many other states such as West Virginia, Vermont, Rhode Island, Pennsyl- vania, and North Carolina, affirm the common law definition of murder as the killing of a rea- sonable creature without explicitly stating the definition itself.5 Other states have kept the com- mon lan definition but have inserted "human being" for "reasonable creature" in the defini- tion of' "murder," but many of these states fbrmerlr. had murder laws which were so word- ed,6 and "human being" still implicitly' involves rationalin in the definition of "man" as "a ratio- nal animal." The issues which we wish to raise concerning reasonableness and murder are thus relevant to our entire legal tradition, either ex- plicitly or implicitly. It has been and still is commonplace to as- sume nair,ell' that all human beings are reason- able creatures. It is also assumed that onl)' hu- man beings are reasonable creatures. These two propositions are logically independent of' one another, and their truth is now open to serious challenge. We propose to develop such a chal- REM B. EDWAftDS is the author o1[ Reason and Reli- gion, and FRAI'{K H. MARSH is an attorney and can- didate for the Ph.D. in Philosophy at the Uniuersity of Ten- nessee. Both haue contributed ideas to this paper, particular- ly the introduction; Edwards is the primary author of the f,rst section and Marsh of the second. t t lenge based largely upon recent developments in science and medical technology. Are all reasonable creatures in being men? It is 1'et to be determined whether the fram- ers of those murder laws which explicitly afford protection against murder to "reasonable crea- tures" are to be commended for their farsighted- ness or condemned for their carelessness. Since this definition of "murder" includes all "reason- able" creatures and is not limited in its explicit wording to "human" creatures, it could presum- ably be applied if at some point in the future one of our citizens killed with premeditative malice a "reasonable" visitor from outer space. Since we are not confronted immediately with such vis- itors, however, there are problems enough with respect to the application of the law to current denizens of our states. ls it murder in Tennessee (and elsewhere) to kill a chimpanzee?7 In the past this question has been easily answered in the negative, for it has seemed so obvious that chim- panzees are not reasonable creatures. Of course, we have known all along that they possessed an acute problem-solving intelligence, brt this alone has not qualified them for classification as "reasonable creatures." We have in fact applied a m.uch stron.ger criterion than the weak one Dar- win recognized, i.e., possession of an acute prob- lem-solving intelligence, in excluding them from the class of'"reasonable creatures." What is this strong criterion, and does it really apply to chim- panzees? The strongest criterion for the correct ap- plication of the concept of "reasonable" to a liv- ing being is the ability to use a larrguage mean- ingfully'. The ability to use "real speech," Des- cartes claimed, "is the only certain sign of thought."s Even the potential for doing so is thought to suffice, for human infants cannot usuallv do this until around the age of l8 to 24 months; yet we do classify them as "reasonable beings" and recognize that willfully and mali- ciouslr killing a small infant who has not yet de- veloped its potential for using language mean- ingfulll is murder. It is not sufficient that a living being merely be able to "parrot" the sounds of a human lan- guage for it to be correctly classified as "reason- able." We do not think that it is murder willfully to kill parrots, parakeets, mynah birds, talking bulldogs, etc., for we do not recognize them as reasonable beings. What they lack, despite their Reasonableness, Murder and Modern Science ability to imitate human sounds, is (1) the ability to correlate conventionalized symbols (as op- posed to natural calls and cries) with their deno- tated objects and to generalize their usage beyond the context of their initial introduction, (2) the ability to combine groups of those sym- bols into sentences constructed according to con- ventionalized rules to syntax and to construct novel meaningful combinations, and (3) the ability to communicate with other language-users to make their meanings, intentions, and desires known and to facilitate symbolic communication for its own delightful sake or as a means of achieving their goals or satisfying their intentions and desires. A.y living thing whrch can learn and use conventionalized symbols in these three ways may be correctly said to have the ability to use a language and to be a reasonable being. This is not being offered as a minimal definition of "language," for any creature with such linguis- tic facilities will be a clear-cut user of language. or the greater part of human histor/, we have assumed that only members of the human species are reasonable beings in the aforesaid sense. We have known, of course, that some members of our species do not fulfill the definition, for there have always been pro- foundly retarded humans who did nor satisfy any of our three criteria for language and rea- sonableness. As late as ten years zgo, this as- sumption was virtually unchalleneeable, for all attempts to teach a uerbal language to even our closest animal relatives, the chimpanzees, were abysmal failures. Within the past ten years, how- ever, researchers have discovered that it is quite possible to teach graphic and gestural languages to chimpanzees. Paucity of imagination alone prior to that time forced researchers to equate lan- guage itself with uerbal language. Within the past "Is the chimpanzee who can ar- ticulate an awa,reness of his ou)n identity . ., and communi- cate in depth with people and with others of his ou)n hind, not a reasonable creature in being?" 25 "The law is notoriously slow to moae or to change." In the Mississippi case of State v.Jones, tried in 182 I , the defendant Jones was charged with murder in the killing of a slave.18 The court was confronted with the question: Was a slave a rea- sonable creature in being such that he could be murdered? While ruling that in some respects slaves were considered as chattels, the court held that they were also considered in other respects as men. The court did not define or explain in what respects that slaves were considered as men, but simply reasoned that since a slave could be held responsible for homicide-the law view- irg them as rational beings capable of com- mitting a crime-they can be victims of murder as rational beings, thus, they are included within the definition of a "reasonable creature in being."ts If the court had stopped here, the in- consistqncy to follow would not have emerged, and perhaps in time the criminal code would have been amended or modified to provide for a clearer definitive meaning of a "reasonable crea- ture in being." However, apparently employing the same defective reasoning, the court extend- ed the meaning of "reasonable creatllre" to in- clude lunatics, idiots, and unchaste women. The latter (unchaste women) apparently provided protection to the prostitute and unfaithful wife. The only other case applicable to the question being discussed is the Texas case of Perryman v. State, which concurs with the Mississippi opin- ion.2o The legal inconsistency is obvious. A slave can be charged with murder because he is a ra- tional being, and thus he can be murdered be- cause he is a rational being. Howeuer, a mentally defectiue person can be murdered because he is a ratio- nal or "reasonable creature," bltt he cannot be charged with murder because he is not a rational being. The law, beginning with the reports of Lord Coke's First Institute of the Laws of England, allows that only t.hose persons who have not a want or defect of will are capable of committing a crime. This theory of responsibility has been kept intact to the present day as a viable legal doctrine. Hart 28 writes that in most contexts, the expression "he is responsible for his actions" is employed to assert that a person has certain normal capacities which society associates with its concept of rationality. The capacities in question are those of under- standing, reasoning, and control of conduct. They constitute the most important criteria of moral responsibility.2l Thus, the law on one hand established that the mentally defective is not a rational being in order to excuse his crimi- nal responsibility, and yet, on the other hand, al- lows through implication that he is a "reasonable creature ir-r being" and can be rnurdered. est we go so far that our discussion be mis- interpreted as calling for the death of an "idiot," or a profbundly retarded child be- cause he is no longer a "reasonable creature in being," we must return to the original thesis and intent of this paper. Are all men reasonable crea- tures in being; and, are all reasonable creatures in being T.n? It would seem that with. a proper examination of the terms "reasonable" and "ra- tional" a termination of a profbundly retarded child's life or the life of an irreversibly comatose patient under our murder statutes would not be murder, while the killing of the educable chim- panzee discussed in Section I could be consid- ered murder. The law is notoriously slow to move or to change; however, this fact has its meritorious moments as well as its negative mo- ments. Even if our courts should decide by arbi- trary fiat that our mlrrder laws do cover the pro- foundly retarded and the comatose human and do not cover the chim panzee, the theoretical and moral issues concerning "rationality" which we have raised in this paper would still remain to be resolved. The law is moving to digest, interpret, and spew forth again legal guidelines for what is happening within the new and exciting bio-ethi- cal field. Only recently have we begun to re-ex- amine such terms as "death," o'corpse," and "when life begins"; and to re-define these terms in law prompted by changes in science and medi- cal technology and new social needs created thereby. We are calling fbr a corresponding re- examination of the meaning and scope of the crucial concept of "reasonable creature." We also call for a recognition of the fact that any law which prof-esses explicitly or implicitll'to give le- gal protection against murder to severely re- tarded human beings as "reasonable creatures" must also give equal protection to chimpanzees with equal or superior functional abilities. 1. See: Tennessee Code Annotated, (Indianapolis: Bobbs-Merrill Co., Inc.). Chapter 24, Section 39-2401. 2. See: People v. Potter,5 Michigan Reports l, Michigan Statutes 28-248. 3. See: State v. Jones, l8 Delaware 573. 4. See: 7 New Jersey Laws, 220. 5. In West Virginia, the court in State v. Dodds,54 West Virginia 289 states that "the general definition of the section does nor touch the common law distinction between murder and manslaughter." ln Vermont, the court inState v.Blair,53 Vermont 37 states "that the section has not altered the common law definition of murder," Statute 53-2301. In Rhode Island, in State v. Hattuay,52 Rhode Island 492, it is affirmed that "Statute does not change the crime of murder as it existed at common Iaw but merely provides for de- grees." In Pennsylvania, the case of Commonwealth v. Exler,253 Pa, 155 states "that since the statute does not define murder, the word must be taken in its common law sense." See also Commonwealth v. Dorazio. In North Carolina, the court in State v. Ph1ne, 124 N.C. 847 states "that statutes where murder is divided into two degrees have not taken away any ingredients of murder at common law." Where a state's legal tradition is based upon common law, unless a statute expressly modifies the common law or is so interpreted by the courts to do so, the common law in question continues to prevail when applicable. 6. For example, the Georgia Iaw now reads: "Murder is the unlaw- ful killing of a human being, in the peace of'the state by a person of sound memory and discretion with malice aforethought, either ex- pressed or implied." Georgia Code 5-26-10. 7. The argument of this paper applies to all the great apes, parric- ularly the gorilla which seems to have even grearer linguistic poren- rial than the chimpanzee. See Peter Swy'nne et al., "Almost Hu- man", Neusweeh, Vol. 89, March 7, 1977, pp.70-73. For simplicity of exposition, we have concentrated on the chimp, though the basic pattern of argumentation may extend even to porpoises. 8. Reproduced in Tom Regan and Peter Singer, Animal Rights and Human Obligations (Englewood Cliffs: Prentice-Hall, Inc., 1976), p. 66. Reasonableness, Murder and Modern Science Notes 9. Details may be found in: Emily and Ola D'Aulaire, "The Ape that'Talks'with People," The Reader's Digest, Vol. 107, Oct. 1975, pp. 94-98. See also Duane M. Rumbaugh, ed.,Language Learning by a Chimpanzee: the Lana Projecl (New York: Academic Press, 1977). 10. See: David Premack, "Language in Chimpanzee?" Science,Yol. 172, May 22, 197 I , pp. 808-822; and Ann James Premack and Da- vid Premack, "Teaching Language to an Ape," Scientif.c American, Yol. 227, Oct. 1972, pp. 92-99. I l. See: R. Allen Gardner and Beatrice T. Gardner, "Teaching Sign Language to a Chimpanzee," Science,Yol.165, Aug. 15, 1969, pp. 664-672; Roger S. Fouts, "Acquisition and Testing of Gestural Signs in Four Young Chimpanzees," Science, Vol. 180, 1973, pp. 978-980; Peter Jenkins, "Teaching Chimpanzees to Communi- cate," in Regan and Singer, Animal Rights and Human Obligations, pp. 85-92; and Eugene Linden, Apes, Men, and Language (New York: E. P. Dutton & Co., 1974). 12. Regan and Singer,p. 63. 13. Institute of Society, Ethics and the Life Sciences, Task Force on Death and Dying. "Refinements in Criteria for the Determina- tion of Death." Journal of the American Medical Association 221 $uly 3,1972),48-53. 14. 40 American Law Reports, Third Series 446 (Rochester, New York: The Lawyers Co-operatrve Publishing Company). 15. J. H. Thomas, Esquire, A Systematic Arrangement of Lord Coke's First Institute of the Laws of England,Yol. [II, Paternoster-Row, Lon- don, S. Brookes. 16. See Morgan v. State, 148 Tennessee Reports 417, Nashville, Rich Printing Company. 17. See State v.Jones, I Mississippi Reports 83, Printed at Courier & Journal Office, Natchez, Miss. and Perryman v. State,36 Texas Reports 321, St. Louis, Mo., The Gilbert Book Cornpany. 18. See State v.Jonrs, Supra, p. 83. 19. Ibid., p. 84. 20. See Perryman v. State, supra, p. 322. 21. H. L. A. Hart, Punishment and ResponsiDillt1 (New York: Oxford University' Press, 1968), pp. 2l l-30. 29