MohamedAmro Beseiso
Word Count:
Role of Judges in Legal Positivism and Natural Law
What are the limitations put on a judge?s ruling? Is there really room of maneuvering for judges in Legal Positivism? These questions have many implications including: Can a judge do a ruling solely based on his discretion? Which legal view should be followed? Each question has a different answer from both perspectives of law (Natural law and Legal Positivism) that will be discussed throughout this essay. Before we can understand the judges? roles with regard to Positivistic and Naturalistic views, we have to understand their ideas of law itself. In broad terms, Natural Law theory states that laws are discovered by moral reasoning and rationale. On the other hand Legal Positivism theory states that law is made by humans and has nothing to do with morality or justice. According to Herbert Lionel Hart, a prominent figure in legal positivism, ?valid legal rules is exhaustive of ?the law,? so that if someone?s case is not clearly covered by such a rule (because there is none that seem appropriate, or those that seem appropriate are vague, or for some other reason) then that case cannot be decided by ?applying the law.? It must be decided by some official, like a judge, ?exercising his discretion.??[footnoteRef:1] Thus, Hart believes that judges should have some room in applying the law by using their discretion. Moreover, there is different types of discretion that will be discussed later in
So if a judge doesn’t agree with the higher courts policy he or she may apply it cautiously or under pressure. When our lower courts get a case with no standard, they will sometime look elsewhere for the direction in determining a case before them (United States Department of State Office of International Information Programs,
In order to uphold the constitution, the Supreme Court must always aim to balance power among the branches of government and not overstep boundaries in exercising its own power. For this reason, the debate over handling political questions in the courtroom
The articles written by Antonin Scalia and Stephen Breyer both contribute valid insight on how the Constitution should be interpreted. They, however, end up taking conflicting views on whether to adopt what is known as a living constitution or to bind the judiciary by the original meaning of the document. Throughout their works, the authors mention the importance of objectivity, judicial restraint and the historical context in which the Constitution was written under and whether or not it should apply to the United States today. Scalia argues in favor of the originalist approach, stating that he supports neither a strict nor a loose interpretation of the Constitution, but rather, a reasonable interpretation. Breyer sides with the cosequentialist ideals, claiming that active participation in collective power is paramount when it comes to evaluating the Constitution's place in American law.
(Dread Scott v. Sandford) Today is a different time, but we still fight battles amongst ourselves. That makes it harder to ask other officials to make the decisions for
The appeal was dismissed and it was held that s.17 was governed by the principles in Ghaidan v Godin-Mendoza [2004] UKHL 30. Also, there are other examples of cases where Godin-Mendoza’s case was applied.
The Court’s effectiveness relies on the institutional capacities as well as the ruling’s popularity. When lower-court judges comply with Supreme Court decisions, rulings can have a substantial effect on social policies, as in the case
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.
This is evident since the judicial branch cannot enforce power, it cannot approach matters, but matters have to seek the judiciary, and public opinion influences the court’s decisions to a great extent. When the President and Congress think that
Judicial selection is an intriguing topic as there are multiple ways that judges take their seat on the bench. The United States Constitution spells out how federal judges are selected and leaves it up to the individual states to establish their means for selecting judges. In federal courts, judges are appointed and it varies between appointment and election for state courts. The purpose of this paper is to examine the differences between appointments and elections (as well as the multiple types of elections) and to give an opinion as to which is the better alternative. Federal judges are appointed by the President of the United States and are confirmed on the advice and consent of the United States Senate.
Abstract This article critically considers whether Equity has developed and is now more determinate in relation to the propositions involved in the quote made by Professor Matthew Harding. To fully consider this topic, the article is going to look at the views of different judges and commentators as well as discussing the relevant case law. The article will talk about conscience, equitable maxims, and imperfect gifts. The fusion theory will also be mentioned to determine if Equity is as certain as Common Law.
The law is an intriguing concept, evolving from society’s originalities and moral perspectives. By participating in the legal system, we may endeavour to formulate a link between our own unique beliefs and the world in which we live. Evidently, a just sense of legality is a potent prerequisite for change, enabling society to continue its quest for universal equality and justice. Aristotle once stated that "even when laws have been written down, they ought not to remain unaltered".
Focus can also be drawn towards the growing advocacy of courts in handling political conflicts and restructuring economies. In recent years, legal scholars, political scientists and social scientists in Western countries have explored the trend of ‘judicial internationalization’, meaning the increased interaction between judges from different jurisdictions around the world . It has been suggested that courts, in particular the
Natural law theory states that there are laws that are immanent in nature and the man made laws should correspond as closely as possible. Man can’t produce natural laws but he can find and discover through his reasoning. If a law is contrary to a natural law then it is not a law. Laws should be related to morality. It is a concept of a body of moral principal that is same for all the man
According to the radical critique of law, how does law discriminate? Along with many other policies, the law also stresses on the discrimination which