Kantian Approach To Torture

A common pejorative against lawyers is that, as legal practitioners, they are cold, definite, and hard. Through the week of classes in Foundations of Justice this lack of heart was one of the many notions that was dispelled as commonality, but also as a students and eventual alumni St. Thomas School of Law, as an issue that we as eventual professionals, is a trait we try to reject. During the first week, I found this premise to be most prevalent in our discussion torture, the discussion encompassed the important topic of both having a heart, but also being able to make hard decisions. No where has this idea been more prominent this first semester than in contracts, especially during the discussion of promissory and equitable estoppels. In
The Kantian approach to torture is that we ban it entirely, although this would be the most preferred method in a perfect world, we do not live in a perfect world. Because war, terrorism, and crime exists, on occasion torture can effectively prevent large scale death. This then leads into utilitarianism, which is, do whatever has less consequences. If this means torture 10,000 people to save 10,001, then you take the chance. This approach has the issue that any deficit can legitimize torture. As for orders of magnitude, this approach looks at the discrepancy between the injured parties in torture and the amount that would be saved. This is still a hard approach, because the questions on where the hard cut-off should be would likely be debated continuously. The fourth possibility is referred to as official disobedience. This is where a single party, without recommendation by any government official commits an act of torture to protect against what the torture seeks to prevent. After this illegal act, if successful it could simply be practice in which government officials pardons the party that committed the
Now I am not stating that utilizing estoppel in contracts is illegal, because contract law is common law and therefore, judge made law, which means that judges for the most part can rule in whatever manner they decide. Albeit, precedent is followed as if it were written as a statute, but nevertheless under the common law, the law is not nearly as steadfast as it is with statutory law. I find the estoppel to be the pinnacle of this, I find the word “justice” to be the premise beyond estoppel. The idea is that, although there was no legitimate contract constructed, the party using the estoppel at some point, to his or her detriment, relied on the idea that the contract was enforceable, although it actually was not. I find this to be the judges way of using a similar premise to that official disobedience within contract law. The judge sees that there was no contract, thus it should be enforced against the party that relied upon the contract, but instead, the judge sees this detrimental reliance and rules in favor of the party committing the detrimental reliance, thus providing that party relief, when under the normal circumstances of contract law, there is not one. In all, this helps show that their is a sense of “justice” when someone commits an act with the right intent, although usually barred by law, there is