Yet it is also misleading to say that judicial duty prevents discretion. Judges can use discretion; they use discretion in a so-called weaker sense As a theory of adjudication in the English and American contexts, the Dworkin's theory is, at least, challenging, provocative. Thus Dworkin alternative theory of adjudication is persuasive. Bibliography 1. Concerning the Hart and Dworkin Debate Constitutional Law Essay.http://www.lawteacher.net/free-law-essays/constitutional-law/concerning-the-hart-and-dworkin-debate-constitutional-law-essay.php?cref=1 last accessed on 01 April 2016 2.
In the beginning of Taking Rights Seriously, Dworkin enforces that his main idea is to interpret and defend a liberal theory of law based on individual rights. His main theses is the idea that individuals can have rights against the state that are more important than the rights created by legislation; citizens have moral rights against their government. I will summarize Dworkin’s main arguments on rights in his book called Taking Rights Seriously, analyze his claims, and evaluate his theory’s ability to unveil his believes on
Dworkin interprets the positivist 's claim that a judge has discretion as meaning that the judge has the right to make any decision he wishes and that he is not obligated to arrive at any particular decision. This is the claim of the legal positivist to which Dworkin objects. Dworkin and positivists believe that in most cases judges arrive at decisions by applying pre-existing law. In such cases, judges exercise no discretion in formulating their
For instance, some claim following the utilitarian theory one could disregard fairness. Examples for this are Kaplow and Shavell. In their book they try to prove fairness is an irrational desire by showing how imposing an unfair rule would affect society. They claim that if we factor the various costs and moral hazards we would still be better off with the unfair rule than with the fair one. What they fail to realize is, however, in a case where “welfarism” correlates with money, the fact they proved that by imposing unfairness, our society is “better off” financially is redundant.
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,
Philosophers John Stuart Mill, Gerald Dworkin, Richard Thaler, and Cass Sunstein all tried to justify laws through three principles: the harm principle, legal paternalism, and libertarian paternalism. Mill’s harm principle only allows the government to create laws that impede an individual’s liberty to harm others. Whereas legal paternalism, according to Dworkin, allows laws to restrict an individual’s liberty for the individual’s own good. Thaler and Sunstein’s libertarian paternalism is different from Dworkin’s in how the paternalistic restrictions take place. The basis of all three is preventing an individual to harm others and I believe that sufficiently justifies laws.
His position in regards to his argument is directly outlined at the beginning of the text to insure that readers are aware of the author’s intensions. He uses examples of situations in which the current principle of alternative possibilities is faulted and concisely pulls apart each situation to determine exactly what constitutes the excision of morally responsibility. The article clearly outlines Frankfurt’s arguments, however it becomes evident in particular sections that Frankfurt’s arguments become slightly repetitive as he tries to, perhaps over simplify his arguments to ensure his reader understand his position. As someone who has never been exposed to the principle of alternative possibilities and its implications of moral responsibility for ones actions I found Frankfurt’s arguments were well illustrated and provided strong persuasion with appeal to reason. Frankfurt not only provides sound reasoning behind his arguments about how the principle of possible alternatives is false, however, he does suggest possible ways to revise the principle so that it is more accurate.
Nozick’s book, as a whole, defends a libertarian perspective. I intent to focus, if not exclusively, mostly on the third part of the book. As Nozick states in the end of the chapter: “The argument of this chapter starts (and stands) independently of the argument of Parts I and II and converges to their result, the minimal state (limited to the narrow functions of protection against fraud, theft, force, enforcement of contracts, etc. ), from another
Nozick’s theory cannot be applied without starting from a just beginning; a different theory of justice might have to be created that is not sensitive to past injustices that we cannot correct. Thus the historical nature of Nozick’s theory could be described as a weakness in his theory. Nozick’s theory embraces an idea that individuals should lead their lives as autonomously as possible. It gives a great amount of liberty to an individual, and it acknowledges a past of injustices. However, objections are that it might not be as good in practice as in theory as Nozick fails to clearly tell us how it should work and it prefers protecting interference of rights and not on the possible consequences of the
Prof. A. V. Dicey elaborated the concept of rule of law in his lectures at the Oxford University which were later published in form of his famous book ‘Introduction to the Study of the Law of Constitution’. Dicey explained his manifestation of rule of law in three main aspects: 2.1 Supremacy of law Dicey expressed that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of land. Here, Dicey argued about absolute supremacy and predominance of the regular law as opposed to the influence of arbitrary power or any wide discretionary power. As per him, it excludes the existence of arbitrariness, wide discretionary power and