Hart’s Positivist Approach to Law and Order applied to Fees Must Fall Tamara Druckman 201229218 1.Introduction The purpose of this discussion is to consider and critically analyse the function of Jurisprudence and the law in a social, societal context. Jurisprudence aims to understand the law by considering the laws of a society is a philosophical context. In order to fully understand the functioning of a legal system and its legal rules in the professional arena, it is necessary to initially consider the ideologies of philosophy. Jurisprudence addresses the theories of law which are normative and which describe “what ought to be”. Therefore, by considering philosophy, one can achieve a holistic understanding of the law in relation to other
Law enforcement officers and others in the system are expected to uphold the law and apply it free of personal moral beliefs. Moral relativism allows them to remove personal beliefs from the equation altogether, and judge based only on the law. In an ideal situation, the law will be administered as it is written, with moral judgments taking place at the legislative level, and not the enforcement level of
Various case laws, the facts of the case and other factors are taken into consideration before the judge forms a concrete decision. Case laws, which are a part of the “prophecies” and “oracles of law” combined with the mindset of the judge among other things, gives an unpredictable character to law. “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience… The prophecies of what the courts will do in fact, and nothing more pretentious are what I mean by the law” – Bad man theory (Holmes,
Therefore in judicial decision making everything depends on the character of the judge and his state of mind. In commercial questions for example judges enforce the norms of the current socio-economic culture, whether it is socialism or capitalism or any other socio-political theory. It is hard to imagine how the judge would defend the interests of the casual citizen against the communist state, while we can assume that the same judge would defend interests of everyone in a Marxist society. Basically, they do what is best under socioeconomic circumstances of society at that
The Judge states, “Moral law is an invention of mankind for the disenfranchisement of the powerful in favor of the weak. Historical law subverts it at every turn. A moral view can never be proven right or wrong by any ultimate test” (McCarthy 261). This quote is significant because it further indicates how the Judge is trying to make evident that moral law is weak. As well as possibly suggesting that something that is not valid should not dictate ones actions over the values of historical law.
The critical legal theory focuses on overturning and challenging accepted standards and norms. It also deals with how legal decisions that are based on political and cultural values are viewed and how they change over time. This theory argues that culture plays a significant role in law and is an important aspect when it comes to the making of laws. Different cultures have different standards and beliefs among their society and therefore different laws are established within them. Critical legal studies seeks to essentially adjust jurisprudence to expose that it is not a reasoned and logical system of wisdom instead it is an ideology that creates an unfair government and political system.
The fault in this lies in the motivation behind the justices’ decisions; with judicial activism, it is nearly impossible to view law as objective and free of bias. Many fear that in acting as policy makers, justices bring their own partialities and beliefs into account instead of allowing the literal interpretation of the Constitution guide their decisions. On the other hand, judicial restraint can also be used when deciding cases. Judicial restraint refers to justices interpreting the United States Constitution word for word, keeping from bringing their own beliefs or biases into account and most importantly refraining from assuming the role of policy maker. Under judicial restraint, justices work to uphold the laws that are already in place and to maintain the laws as they stand except in the event that they are blatantly unconstitutional.
Counter-Position to my argument The question at hand is whether judges can exercise discretion when deciding cases. Different theories arrive at different conclusions. Legal positivists, such as H. L. A. Hart, claim that in difficult cases judges do exercise discretion. An alternative theory of law offered by Ronald Dworkin contains some aspects of positivism. Dworkin believes that judges do not have discretion.