TRUE SENSE OF INTERNATIONAL LAW: The controversy whether international law is a law or not resolves on the divergent definitions of the word “law” given by the jurist. If we subscribe to the view of Hobbes, Austin and Pufendorf, that law is a command of sovereign enforced by a superior political authority then international law cannot be included in the category of law. On the other hand if, we subscribe to the view that the term“law”cannot be limited to rules enacted by superior political authority, then international law can be included in the category of law. Lawrence aptly remarked that everything depends upon the definition of law which we choose to adopt. International law is not law in the true sense of the term- Hobbes and Austin
Free speech, however, is not entirely without restraint; surrounding conditions dictate the reasonableness of any control thereof. The current legal position in the United States of America, where the Supreme Court has pronounced that speech, even belligerent speech, may only be impeded and regulated in the distinct and extant risk of impending conduct, contrary to the law, deviates from the norm internationally and in other nations. Among the few concessions to this legal
In many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. The Constitution is not the source but the consequence of the rights of the individuals. Thus, dicey emphasized the role of the Courts of law as guarantors of liberty and suggested that the rights would be secured more adequately if they were enforceable in the Courts of law than by mere declaration of those rights in a document, as in the latter case, they can be ignored, curtailed or trampled
An example is the United States. While there is no explicit judicial review in the US constitution, the power of the Supreme Court to overturn unconstitutional laws has become a well-established precedent since the case of Marbury v. Madison (1803). Notably, the judiciary takes on the role of both litigation and constitutional review. i) decentralised and diffused system: the jurisdiction to engage in constitutional interpretation is provided to many courts: state and federal (“Why Europe rejected American judicial review” 2770). A benefit is the direct confrontation of protecting citizens’ rights, even at a state level.
It can be seen that each branch has different role , thereby, it means that if legislative authority has responsibility to enact the law, it does not have a duty for judicial decision or execution. This also apply to executive authority where it shall not be charged to enact the law and judges the dispute and also apply to judicial authority where it is not supposed to enact or administer the law. In my opinion, “power arrest power” means that only power which can be a tool to balance another power. In other words, it allow one branch to limit another as in Hannah’s work said that “Power can be stopped and still kept intact only by power”. For example(case of legislature and judiciary) is that judges in UK cannot stand
Legal positivism is thus distinguished by two central claims: that law is separable from its substantive morality and that there is no necessary link between law and morality. Thus, both Hart and Austin propound that the existence of a law and our duty to obey such law, even if we dislike it are two different queries. It is often argued that legal positivism assisted in legitimizing the Nazi rule. According to Hart’s Rule of Recognition, the master test of legal validity, there must not only exist both a convergent practice among officials of applying certain criteria of legal validity in deciding which norms are laws, but also that the officials adopt an “internal point of view” towards this practice, that is, they believe they have an obligation to do
Both the harm principle and legal paternalism are aimed at upholding an individual’s liberties within the law. However, they argue different view points and restrictions. The harm principle is chiefly concerned with upholding an individual’s right to somehow harm oneself, while legal paternalism says the law can interfere to prevent an individual from harming oneself. This is the most obvious distinction between the two philosophies. Dworkin’s argument for legal paternalism, however, uses Mill’s argument against him, and ultimately proves to be the stronger principle to justify law.
Introduction The traditional English law has long been holding a hostile position towards recognising the duty of negotiation in good faith, let alone the general principle of good faith in other jurisdictions. Notwithstanding the underlying legal difficulties in Walford v Miles, a general principle should be established to facilitate business efficacy, fairness and reasonableness in legal development. Hereinafter, I will analyse its rationale in English law and submit the possible application of general principle of good faith with reference to both common law and civil law jurisdictions. Traditional position of “good faith” in English law Walford was a classical decision demonstrating English court’s denial of duty of good faith in
The First Amendment states “Congress shall make no law…abridging the freedom of speech” (Hall, 2014, p. 310). The federal government is not alone in adhering to this clause, but state and local governments also must abide (Hall, 2014). The U.S. Supreme Court has ruled that free speech includes many forms such as written or visual and expression or nonverbal speech (Hall, 2014). There are exceptions to free speech if a government can justify an interest that would outweigh individuals’ rights under the First Amendment (Hall, 2014). The fighting words doctrine is an example of a justified exception (Hall, 2014).
However, despite it not holding any legal significance today, it has been successful in showing the rights of citizens and has influenced many common law documents. Magna Carta was followed by the Bill of Rights 1688, which similarly had an approach to limit the powers of the monarch and also expanded the rights of Parliament. The UK has a constitutional monarchy in which the monarch governs the country in accordance to the constitution. This holds a dutiful right to express views on any government matters. These views are according to rules which are not based on individual beliefs.