Moreover, he points out that there is a tendency of understanding this legalist paradigm in a state-centric practice, which works through a top-down influence (McEvoy 2007). Sovereign states are the main actors who have the legitimacy to implement the law with their institutions. Truly, often enough the absence of functioning of such institutions is a synonym for lawlessness, violence and anarchy in a Hobbesian manner (“homo homini lupus”). The observation of
International law has no central authority and operation as an anarchic highly decentralized legal order. Nevertheless, the absence of an authoritarian figure to enforce penalties does not mean that international law should not be considered “real” law. Law is still applied, but practiced and enforced in different ways. Overall, international law is considered “real” law because system of rules, established by binding agreements, that aim to regulate the actions of its members, but with different characteristics practiced in the domestic arena, where there is legislative, judiciary, executive, and police
• What is the difference between Law and justice? According to the Introduction to Law, Study Guide- Law is a system of norms and rules; that is; as a group of norms and rules that all work together as a unit to regulate human behaviour within our society in a very specific way. The definition of justice according to www.yourdictionary.com is the use of power as appointed by law, honour or standards to support fair treatment and due reward. Justice can be seen as fairness in protection of rights and punishment of wrongs. While all legal systems aim to uphold this ideal through fit, fair and proper administration of the law of the land, it is possible to have unjust laws.
As mentioned as above, under rule of law everyone shall be fair and equal in front of law. One of the important element In Raz’s principle is the independence of judiciary has to be guaranteed. This showing the judicial independence is the fundamental structure of the idea rule of law. In case M v Home office, it implies that even though the individuals representing the executive, the courts still have power to grant remedies against a minister in his office capacity. The courts are armed with coercive powers exercisable in proceedings for contempt of
According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc. ); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject
International law must prevail in order to have equality among each individual in the world because international law protects the people over the unethical municipal laws of a certain country or state. International law gives standard and protocol to states. The law prevents abuses of the state and promotes absolute gain among state and state actors. The monist point of view is in connected to theory of harmonization of international law. According to Andenas(2008) In order to have a fixed legal international system, harmonization of law is important.
Sir. Henry firmly established that in primitive society there was so sovereign political authority and they were also governed by rules. The advocates of this theory uphold that international law contains many rules and in that sense international law is a law. The source of every law is custom. In ancient society people were governed by many customary rules.
First of all, the precise content of the constitution would be difficult to determine. This is due to the unwritten sources of the constitution such as conventions that while constituting an extremely important source, mostly undefined and not legally binding. It is suggested that it would be advantageous to gather the conventions on a specific subject together, preventing them from losing their flexibility while accommodating some of the advantages of codification such as clarity and organization. However, it would be an obvious disadvantage to include them in the constitution as legally binding obligations, as they are not only difficult to define but they would also lose their essence of binding purely on a non-legal
Thus, the existence of judicial precedent often prevents judges from developing legal principles in accordance with societal developments. The disadvantage of judicial precedent is strict rules can cause injustice in individual cases. This is because each case is different and so it is unjust to simply applying the same reasoning as in the past. This injustice is hard to solve because only a superior court faced a cases of injustice in order to overturn the precedent. In addition, judicial precedent is rigidity.
Natural Law. The theory that there exists superior principles of that which is considered right and just, or higher laws to which the ordinary civil rules made by man must conform and which necessarily place limits on the operation of such rules, is one of the most persistent ideas in the evolution of legal thought. This evolution has, at times, had its appeal via perceived connections to religious beliefs and superstitions but in modern times has become an important weapon in political and legal ideology. There have been times when the import of higher law concepts has been discredited or their directive force in legal growth has been concealed by a different terminology. However it is argued that this notion of its revival and decline is