He or she would judge that the offender is immoral in some way and, therefore, make a personal judgment that is separate from the law. For these reasons, I believe that moral relativism is ideal for those who work in the field of criminal justice. The law, as it stands, is to be enforced free from the moral judgments of the criminal justice community. A community that bases its morality on personal experience and does not pass judgment on the morality of an offender is a more professional force than a group of people with varying moral views who are tempted to apply a personal system to the enforcement of the
In his essay The Model of Rules I, Professor Ronald Dworkin argues against a certain theory of law he attributes to H.L.A Hart called “positivism.” While Dworkin argues against many tenets of the positivist theory, I will focus this essay on critical reasons against Dworkin’s argument against the legal positivist thesis that the law consist of nothing but rules. To do so, I will explain the necessary components of Hart’s theory of law required to understand Dworkin’s rebuttal. Then, I will reconstruct Dworkin’s argument against what I will classify “nothing but rules” claim, and I will ultimate claim Dworkin’s argument fails because his premise that states principles are extra-legal and cannot be explained as part of the categories is false. In particular, I indicate how principles can be legally binding like legal rules are, and I pick apart his reasons for believing that there are clear distinctions between laws and principles.I will interpret the cases Dworkin uses to support his thesis to show the limitations of his argument. Finally, woven within the points I stated above, I will be sure to anticipate potential counterarguments and weigh them against my thesis.
H.L.A. Hart, a legal Positivist, and Lon L. Fuller, who was a natural law theorist, engaged in debates between these two traditions of Jurisprudence. In his 1958 paper ‘Positivism and the Separation of Morals’, Hart maintained that positivism is a theory of the nature of law, not a theory of how individuals should reason when approaching the law. Hart was influenced by his predecessors, Jeremy Bentham and John Austin; he mainly defended the insistence on the lack of necessary connection between law and morality and highlighted that legal positivism includes nothing more than ‘the contention that there is no necessary connection between law and morality.' Harts positivism has been criticised over the years.
Essential theoretical feminist work has also been done in legal implications like tax law, property, and corporate law. Finally, there will be different feminist critiques of each legal issue area (MacKinnon, 1989). Analytical Approaches to Feminist Legal Theory There are four major analytical approaches to Feminist Legal Theory including Equality, dominance, difference and intersectionality. However, all of these four aspects are mutually exclusive, but there are numerous situations when freely implemented to varied methods to a specific concern will result to oppositional result. 1.
Dworkin’s argument for legal paternalism, however, uses Mill’s argument against him, and ultimately proves to be the stronger principle to justify law. I believe legal paternalism is the only principle that may justify laws, and it will be explained why by showing how Mill’s own views allow for legal paternalism, how Dworkin perseveres freedom through interference, and how there are functions in place to minimize paternalistic interference. However, we must begin by defining what these two philosophies are. First, the harm principle will be explained. Mill himself writes it as being, “… the sole end for which mankind are warranted,
Firstly, Dworkin claims that judges make decisions based on principles representing society's moral values, and that judges cannot apply their own personal moral values when adjudicating. This claim is empirically incorrect. In reality, sometimes judges make decisions based partly on personal preference. Although the ideal judge, a Herculean judge, is supposed to be completely impartial, it is unrealistic to expect judges to be completely objective and
The main principle for the theory of justice, justice as fairness, is determined by a silent spectator. Rawls’ approach is individualistic and the concept of justice as fairness may not be feasible to a certain extent in a society with a collective manner of thinking. A further criticism of the theory is Rawls’ acceptance of class division as he feels the need for creating a ‘difference principle’. No background is given as to why there is a state of class division and this goes against his inclusion of equality alongside liberty as principles of
Ethical relativism or also known as moral relativism denies that moral values and norms are objective or universal and declares that there is no absolute truth. The truth is relative to the subject and can differ from person to person and from society to society. Ethical relativism states that our morals and
INTRODUCTION This essay aims to critically assess the pugnacious and immoral traits ascribed to realism. The essay begins with a brief introduction to the theory of realism and probes some of its main tenets; the logic of anarchy, conceptions of power and the role of morality. Weaved within each of their fabric is a comparative analysis of the notions advanced by thinkers of both realist schools; classical realism and neorealism. The essay then proceeds to illustrate criticisms of the realist thought and questions its prevalence in the twenty-first century. The essay finally concludes by reiterating the central argument of this research that realism is not an amoral and/or bellicose doctrine.
According to this school, the essential characteristic of law should be to represent common interaction of men in social groups, whether past or present, ancient or modern. Many authorities contend that sociological jurisprudence originated as a reaction to rigid legal positivism which relied on the fact that law is solely based on the coercive power of the State and completely rejected the pursuits of morality and justice as irrelevant in human relations. Likewise, it was also opposed to historical school’s undue insistence on past customs,